The doctrine of double jeopardy in international criminal and human rights law

Abstract

This study is devoted to focus on the doctrine of double jeopardy in international criminal and human rights law. The study is in two parts. Part one is divided into 5 sub-sections. Sub-section 1, is a historical background and traces the genesis of double jeopardy. Subsections 2 and 3 are linked together and highlight the scope of the Double Jeopardy Clause under the Fifth Amendment of the United States Constitution. Moreover, they highlight the development of the idea of retrials subsequent to erroneous convictions. Sub-section 4, clarifies the idea of continuing jeopardy and its impact on the determination of finality and jeopardy's attachment. Finally, subsection 5, covers the problem of the same offences through different perspectives. Part 2 is also divided into 5 sub-sections. Sub-section 1 offers a comparative background, which highlights the doctrine as set out in various Constitutions. Sub-section 2, deals with the conformity towards the application of the doctrine in the international realm through the chapeau of the universal instruments (ICCPR). The non bis in idem provision set out in the ICCPR will be thoroughly examined and compared with various provisions set out in different legal systems in order to stress the diversity revolving around this principle. Sub-section 2, is also divided into 4 parts. Part 2.2.1 highlights the scope of the doctrine through the Human Rights Committees' approach. Part 2.2.2, clarifies the doctrine of dual sovereignty and its impact on the outcomes of the Human Rights Committee. Parts 2.2.3 and 2.2.4 focus on the problem of respecting foreign judgments with regard to territorial and extraterritorial offences. Sub-section 3, is divided into 2 parts. The 2 parts (2.3.1, 2.3.2) will view the scope and functions of the doctrine through the main regional instruments. Sub-section 4 highlights the provisions setting out the non bis in idem principle through examining the texts and practices of the International Criminal Tribunals. Finally, subsection 5, will throw light on the criticisms to double jeopardy. Finally, a conclusion will be drawn.