C. Conclusion
X. Declaration of Judge Nieto-Navia
1. I am appending a declaration because it is, in my view, necessary to say a few words about Article 25 of the Statute which provides the Prosecution or a convicted person the right to appeal on an error on a question of law invalidating the decision or an error of fact occasioning a miscarriage of justice. It would appear that the Prosecution’s appeals against the acquittals on Counts 8, 9, 12, 15, 21 and 32, constituting ground 1 of the appeal, and on Counts 29, 30 and 31, constituting the second ground of cross-appeal, fall within the ambit of Article 25. The civil law principle of non bis in idem, according to Black’s Law Dictionary, means that the accused “shall not be twice tried for the same crime”. The corresponding common law principle of double jeopardy entitles the accused “not [to] be twice ‘put in jeopardy’ for the same offence”. On the face of it, it would appear that Prosecution appeals against acquittals, though permissible under Article 25, might be in contravention of the legal tenet of non bis in idem. My concern is two-fold: (1) is non bis in idem a general principle of law; and (2) if so, is Article 25 consistent with the principle?
2. It is notable that the International Tribunal’s own Statute recognises the maxim of non bis in idem. Article 10 protects a person tried by the Tribunal from subsequent prosecution by a national court. The corollary is also true: a person tried by a national court may not be tried subsequently by the International Tribunal unless the original charge was classified as a common crime, or the national court proceedings did not conform to the fundamental principles of criminal law (that is, the court proceedings were not independent and impartial, or were conducted to shield the accused from international criminal responsibility, or the charge was not prosecuted diligently).
3. Can a general principle of law be discerned from the practice of domestic courts?
In the United States, the Supreme Court has interpreted the double jeopardy clause of the Fifth Amendment1 to mean that the Prosecution cannot appeal against a verdict, whether on an error on a question of law or fact.2 This finality accorded to criminal judgements is intended to protect the acquitted or convicted person against “prosecution oppression”. Double jeopardy does not bar the convicted person from appealing because he/she chooses to put himself/herself at risk once more.
1 The Fifth Amendment of the U.S. Constitution reads: “nor shall any person be subject for the same
4. Similarly, in the United Kingdom, the application of the double jeopardy principle precludes the Prosecution from appealing against acquittals, except where the appeal challenges an acquittal tainted by bribery, threats or other interference with a witness or juror,3 or where the appeal is from acquittal in the magistrates’ court by case stated to the Divisional Court of the Queen’s Bench Division on the ground that it was rendered in error of law or in excess of jurisdiction.
5. Thus, it seems that the common law gives special weight to acquittals. In the United Kingdom, the Prosecution does not have the right to appeal although appeals are allowed in certain clearly circumscribed instances. In the United States, there is a complete bar on appeals against acquittals.4
6. I turn now to examine the position adopted by countries in the civil law tradition.
Civil law generally allows appeals against decisions at first instance. However, decisions rendered by the second-tier courts can be appealed by way of cassation only on errors of law. In France, the Prosecution may lodge a pourvoi en cassation to challenge procedural irregularities, which inter alia, include an error in law made by the lower court.5
7. In Germany, Prosecution appeals against acquittals are not considered to violate non bis in idem because the judgement at trial is not seen to constitute the end of the criminal proceeding.6 It seems that, in the German legal system, jeopardy attaches with the criminal charge and continues through all proceedings that arise from the original charge.7 Hence, a Prosecution appeal from acquittal is seen as another step in the criminal proceedings.
8. This brief survey of domestic practice, though far from comprehensive, reveals that no general principle of law can be drawn from domestic practice. Unlike the Anglo-American common law system, the civil law system does not construe Prosecution appeals against acquittals to compromise the principle of non bis in idem.
3 See s. 54 of the Criminal Procedure and Investigations Act 1996.
4 See supra, note 2.
5 See Dadomo, Christian and Farran, Susan, The French Legal System (2nd ed., Sweet & Maxwell, London, 1996), 220.
6 See ss. 312 and 333 of the German Criminal Code.
7 Justice Holmes, dissenting in Kepner v. United States, advocated the adoption of the concept of
“continuing jeopardy”. He argued that “a man cannot be said to be more than once in jeopardy on the
9. From the foregoing, I must conclude that there is no general principle of law that would prohibit Prosecution appeals against acquittals. Therefore, it is unnecessary to analyse whether Article 25 is consistent with non bis in idem.
10. It seems to me that this conclusion is buttressed by the fact that the rationale which underpins the common law’s vigorous approach is absent in the context of prosecutions before the International Tribunal. The impetus for the special weight given to acquittals is the desire to prevent the government, with its vast superior resources, from abusing its power to prosecute accused persons by re-prosecuting them until it manages to obtain convictions.8 In the International Tribunal, while the Prosecution prosecutes on behalf of the international community, it is not supported by a governmental apparatus with abundant resources. Like the Defence, it too must rely on the co-operation of external entities. Moreover, Articles 20(1) and 21(4) guarantee to each party equality of arms.
11. I accept that Prosecution appeals against acquittals conform to the requirements of Article 25. However, I think that the Appeals Chamber should analyse, at the sentencing stage, whether a successful Prosecution appeal should put the person in a worse position than that at the end of trial (“reformatio in pejus”).
12. With respect to the fourth ground of cross-appeal, on the question of whether there exists a crime against humanity where the accused acted out of purely personal motives, I join in the reasoning and conclusion offered by my learned colleague, Judge Shahabuddeen, in his separate opinion. I would add only the following to elaborate my own position. The reason that a crime against humanity under Article 5 cannot be committed for purely personal motives completely unrelated to the attack on a civilian population is that, being a crime under international law, there must be a proximate connection between the underlying act(s) and the surrounding armed conflict. An unlawful act perpetrated in the context of an armed conflict, but unrelated to the hostilities, is a common crime under national law. The fact that such a crime was committed in the context of an armed conflict does not render it subject to international humanitarian law.
13. On the question of whether the Prosecution has a right to the production of Defence witness statements, constituting the fifth ground of cross-appeal, I agree with
the decision of the Appeals Chamber for the reasons set out in Judge Shahabuddeen’s separate opinion.
Done in both English and French, the English text being authoritative.
______________________
Rafael Nieto-Navia
Dated this fifteenth day of July 1999 At The Hague,
The Netherlands.