An Introduction To The International Criminal Court - Institute for ...

88 introduction to the international criminal court
in important human rights treaties such as the International Covenant on
Civil and Political Rights. 73 The test as to whether the national trial proceedings
were legitimate is slightly different from the ‘unable or unwilling
genuinely’ standard of Article 17, which applies with respect to pending or
completed investigations and pending prosecutions. If a domestic trial has
already been completed, the judgment is a bar to prosecution by the Court
except in the case of sham proceedings. These are defined as trials held to
shield an offender from criminal responsibility, or that were otherwise not
conducted independently or impartially and were held in a manner which
‘in the circumstances, was inconsistent with an intent to bring the person
concerned to justice’. 74
In a case where an individual is properly tried, but is then subsequently
pardoned, the Court would seem to be permanently barred from intervening.
The case is far from hypothetical. In the early 1970s, William Calley
was convicted of war crimes for an atrocious massacre in My Lai village in
Vietnam. Justice had done its job and he was duly sentenced to a term of
life imprisonment. Then the United States President, Richard Nixon, intervened
and granted him a pardon after only a brief term of detention had
been served.
There is some doubt about the application of complementarity and the
ne bis in idem rule to situations where an individual has already been tried
by a national justice system, but for a crime under ordinary criminal law
such as murder, rather than for the truly international offences of genocide,
crimes against humanity and war crimes. It will be argued that trial for an
underlying offence tends to trivialise the crime and contribute to revisionism
or negationism. Many who violate human rights may be willing to accept the
fact that they have committed murder or assault, but will refuse to admit the
more grievous crimes of genocide or crimes against humanity. Yet murder
is a very serious crime in all justice systems and is generally sanctioned
by the most severe penalties. Article 20(3) seems to suggest this, when it
declares that such subsequent proceedings before the International Criminal
Court when there has already been a trial ‘for conduct also proscribed under
Articles 6, 7 and 8’ is prohibited. In the alternative, the Statute ought to have
said ‘for a crime referred to in Article 5’, as it does in Article 20(2).
The Statute also prohibits domestic justice systems from trying an individual
for one of the crimes listed in the Statute if that person has already
73 International Covenant on Civil and Political Rights, (1966) 999 UNTS 171, Art. 14(7).
74 Rome Statute, Art. 20(3).