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Official Gazette

Saturday, August 8, 2020

Double jeopardy and other principles of the Rome Statute

Updated: 10:31’ - 27/07/2009

Nguyen Cong Hong, LL.D
Deputy Director
Criminal-Administrative Law Department
Ministry of Justice

The ne bis in idem principle is codified in Article 20 of the Rome Statute of the International Criminal Court (ICC). The essence of this double jeopardy principle is that no one will be tried twice for the same offense. This is an important principle in criminal law to protect individuals who have been already prosecuted from re-prosecution or re-conviction for the same offense. This principle protects justice and integrity in the execution of justice and has also been recognized by previous international courts.[1]

Article 20 of the Rome Statute refers to this principle in two aspects:

First, ICC will not prosecute an individual for an offense for which he/she has been convicted or acquitted by a court.

Second, other courts will not try an individual for an offense for which ICC has convicted or acquitted him/her.

In other words, in a case in which ICC has tried a national of a country for one or several offenses as defined in Article 5 of the Rome Statute, then the court of that country will not conduct legal proceedings against that individual for such offense or offenses. Likewise, if that individual has been tried by a court of his country, ICC will not try that individual for the same act charged by that court.

There are not yet such provisions on this principle in the criminal law of Vietnam, but it is an “unwritten rule” in investigation, prosecution and trial work. In light of recognition and enforcement of criminal judgments of foreign courts to see if this has been indirectly defined in Vietnam’s criminal law, this issue has not yet been touched upon. Normally, for a criminal judgment which was handed down by a foreign court, the recognition and enforcement of such verdict in Vietnam will comply with a bilateral judicial agreement between Vietnam and that country or be based on the reciprocity principle.[2] However, for a verdict given by an international court, there is not yet a single provision on this issue.

According to the Law on Conclusion, Accession to and Implementation of Treaties, “in a case in which a legal document and a treaty to which Vietnam is a contracting party contain different provisions on the same issue, the treaty will prevail.” Therefore, in principle, if a protocol of an international court to which Vietnam is a member provides for the ne bis in idem principle, Vietnamese authorities will adhere to this principle. However, there has not yet a case recorded to prove such practice.

No crime without a law

Article 22 of the Rome Statute provides a principle fundamental to any criminal legal system, which is the principle of nullum crimen sine lege: no one is considered guilty if the law does not define the offense. This principle stems from an awareness of the serious consequences that arise out of the judicial process, and the need to protect individuals from intervention by a national legal institution.[3] This principle has long been recognized by international law and was influential in the process leading to the approval of the Rome Statute.[4]

In the Rome Statute, all acts considered by a court must be defined as offenses within the jurisdiction of the court. This principle bars the prosecution of individuals for crimes not stated in the Statute. Also, the crimes here are listed in Article 5, such as the crime of genocide, crimes against humanity, war crimes and even the crime of aggression if this is clearly detailed.

As a result, individuals are only prosecuted for the crimes defined clearly in the Statute by the member states. From their part, the member states are obliged to cooperate with ICC and give jurisdictional rights to the court in accordance with the principles defined in the additional protocol. This is not only because this principle relates to the cooperative obligation of the member states, but it can only be applied when crimes within the jurisdiction of the Court occur.

In Vietnam’s Penal Code, the nullum crimen sine lege principle is mentioned in Article 2 on the basis for penal liability: “Only those who commit an offense defined by the Penal Code shall be held responsible for penal liability.” Of those crimes defined in the Rome Statute, some are defined in the Penal Code, though not in detail and as fully defined as in the Statute. They are undermining peace, waging war of aggression, crimes against humanity and war crimes.[5] Vietnamese citizens therefore will not be subject to penal liability for acts not defined in the 1999 Penal Code, whether or not they are defined in the Rome Statute.

Penal liability

 

The age of penal liability defined in the Rome Statute provides exemption from penal liability for those under 18. According to Article 26 of the Rome Statute, “a court shall have no jurisdiction over any person who was under 18 at the time of the alleged commission of a crime.” This also means that only the jurisdiction of the ICC is excluded in the case in which the offender is under 18 years old. It does not mean that all individuals under 18 are exempt from penal liability for offenses defined by international law. They will therefore have to take responsibility for the criminal offenses mentioned in Article 5 to the courts of their countries according to the universal jurisdiction principle, if this is so provided by national laws. This provision of the Rome Statute aims to avoid conflict with national laws in defining the age of penal liability.[6]

The age of penal liability is defined differently from country to country. Based on crime prevention practice, Article 12 of the 1999 Penal Code provides that:

1. Persons from full 16 years of age shall take penal liability for all committed crimes.

2. Persons above 14 years of age but below 16 years of age shall take penal liability for very serious crimes committed intentionally or for especially serious crimes.

The 1999 Penal Code has taken for granted that people of the age of penal liability generally have penal liability capacity. In application, competent authorities shall investigate the age of offenders and shall only check their penal liability capacity when necessary.[7] According to the Penal Code, those who commit crimes against peace, waging war of aggression, crimes against humanity or war crimes shall be examined for penal liability from the age of 14 years, much lower than what is defined in the Rome Statute.[8]

Apart from defining individual penal liability according to common principles,[9] the Rome Statute also provides for individual criminal liability in the following cases:

- Ordering, soliciting or inducing the commission of a crime (Article 25 Clause 3b);

- Aiding, abetting or otherwise assisting in the commission or attempted commission, including providing the means for the commission (Article 25 Clause 3c).

In the first case, a person ordering the commission of a crime is seen as perpetrator rather than accomplice.[10] Soliciting means giving commanding, encouraging, requesting or provoking the commission of a crime.[11] Inducing in essence means influencing others to commit crimes. Such influence is mainly sentimental but can also be material as in vis compulsive.[12] The relation between the ‘superior level’ and ‘subordinate level’ is not necessary in this case.

In the second case, aiding and abetting includes any kind of assistance, sentimental or material, which can significantly influence the commission of a crime. In other words, ‘significant influence’ is a decisive factor. Here, it is not possible to adopt one formula to assess the extent of influence, but in certain cases, it has to be based on ‘relation’ principles. “Otherwise assisting” is seen as lower than aiding and abetting.

The 1999 Penal Code also provides for similar cases. Clause 2 of Article 20 states: “organizers, executors, instigators and helpers are all accomplices” and “the helper is the one who creates spiritual or material conditions for the commission of a crime.” Under this provision, the helper acts to create favorable and easy conditions for the commission of a crime. Here, providing material conditions could be giving a vehicle, weapons and knives to the offender to perform the crime. Providing spiritual conditions means giving promise to hide the offender or give certain benefits such as promotion or salary increase for the offender. Help is often prior to the execution of acts, and in some cases, in the course of action.[13]

Commander responsibility

In international law, the theory of commander responsibility relates to individual penal liability and has been developed from customary law created after World War II.[14] Originally, this theory is about military commanders and certain personnel taking responsibility for criminal acts of their subordinates for failing to fulfill their duties or manage and supervise their subordinates. Any individuals, including military commanders or higher-ranking personnel, are responsible for acts they have planned, instigated, ordered, executed or aided and abetted. To a certain extent, the commander responsibility theory can be applied as a special form of complicity through military discipline. The commander takes responsibility for the offenses committed by their subordinates.

Article 28 of the Rome Statute provides for the penal liability of a commander in the following cases:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces. Under this provision, military commanders are normally members of an armed force in a conflict, and have command over one or more armed units. This commander has the power to give orders to his subordinates. In some countries, the head of State or a leading political figure can be head of military forces. For example, the US President is commander-in-chief.[15] The concept of having power as military commander can be understood even in a broader sense which includes police officers in armed police forces, responsible persons of para-military forces, and de facto commanders of armed forces, police forces and para-military forces.[16]

(b) A superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinatess. The superior- subordinate relation mentioned here is non-military. The superior can control according to law (de jure) or in practice (de facto) acts of the subordinate. Such power is normally related to a high-ranking position because only those can have the power to control the work done by their subordinates and give orders.[17]

In practice, most cases relating to commander responsibility after World War II are against military commanders. However, a superior who is not a military commander can be prosecuted for failure to perform his task in certain circumstances. Article 7, paragraph 3, of the Yugoslavia Court Statute not only provides for responsibilities of military commanders but also superiors. The recent decision given by the ICT Court of First Instance in the Celebili case has shown that superior personnel are not necessarily military personnel.[18]

The existing criminal law of Vietnam has no provisions on this issue.

Statute of limitations

Article 29 of the Rome Statute declares no statute of limitations applicable to the crimes under the jurisdiction of the ICC. No international legal instruments, from the Nuremberg Charter to the Regulation on ad-hoc courts, provide for this issue. This is logical as where there is no time requirement, it is not necessary to mention this point.

The legal systems in many countries provide statutes of limitations for crimes, even the most severe ones. For example, under the French law, the statute of limitations for a murder prosecution is 10 years.[19] Many laws originating from Napoleonic model laws share similar provisions.[20] But, in an Israeli court, Eichman defended that the prosecution already passed the statute of limitations but he was rejected by the court.[21] At the international level, this tendency has been reflected in the resolutions of the UN General Assembly and international agreements within the UN system and the European Council, although such international agreements are not widely signed and ratified.[22]

The Penal Code of Vietnam has a general article on statute of limitations.[23] Nevertheless, it provides that “the statute of limitations for penal liability examination defined in Article 23 of this Code is not applicable to crimes defined in Chapters XI and XXIV of the Code”. They are crimes of infringing upon national security, undermining peace and crimes against humanity, including genocide and war crimes. Therefore, although it is not yet fully reflected, the Penal Code is basically in line with the Rome Statute in adopting no statute of limitations for serious crimes under the ICC jurisdiction.

Jurisdiction of courts

According to Article 12 of the Rome Statute, ICC may exercise its jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression if (a) the state in which the crime occurs or (b) the state of which the person accused is a national is a party to the Statute. Therefore, ICC’s jurisdiction is established on two principles: territorial jurisdiction and nationality jurisdiction. As long as one of these conditions is satisfied, ICC may exercise its jurisdiction. However, this also means ICC can have jurisdiction over citizens of non-party states. If a citizen of a country commits a crime in the territory of another country which is a party to the Rome Statute, ICC has the right to prosecute and try the citizen regardless of whether his state is a member of ICC or accepts ICC jurisdiction. Apart from these two cases, ICC also has jurisdiction over citizens of non-member states if this is accepted by such states.[24]

Articles 5 and 6 of the Penal Code recognize the application of jurisdiction according to territory and nationality principles for crimes against humanity, genocide and war crimes, and that the Penal Code ‘is applicable to all criminal acts occurring in the territory of the Socialist Republic of Vietnam’ and Vietnamese citizens ‘committing crimes outside Vietnam territory can be examined for penal liability in Vietnam according to the provisions of the Code.” In addition, the Penal Code also provides that the national court may exercise its jurisdiction over foreign citizens having committed crimes in a foreign territory as long as it is so provided by international agreements to which Vietnam is a signatory. However, the criminal law of Vietnam has no provisions on the possibility that Vietnamese citizens can be prosecuted and tried by a foreign or an international court and on the transfer of jurisdiction to such a court. In case Vietnam is a contracting party to an international agreement concerning this matter, Vietnam shall be obliged to implement it as Article 3 of the 2005 Law on Conclusion, Accession to and Implementation of Treaties provides that “the Socialist Republic of Vietnam adheres to the treaties to which Vietnam is a contracting party.”

Definition of crimes

The Rome Statute provides relatively sufficient definitions of crimes under the jurisdiction of ICC such as genocide, crimes against humanity, and war crimes. Most of the definitions were developed based on the Convention on Genocide of 1948 and the four Geneva Conventions of 1949. Currently ICC is still working on the definition of the crime of aggression so that the Court can exercise its jurisdiction over individuals committing this crime.[25]

Vietnam’s Penal Code has no detailed provisions on the crimes under ICC jurisdiction. Though it reserves one chapter (Chapter XXIV) for the crime of undermining peace, crimes against humanity and war crimes, its provisions remain very general. Vietnam joined the 1948 Convention on Genocide in 1981 and the four Geneva Conventions of 1949 in 1957. Nevertheless, the definitions under these conventions have not yet been interpreted into the domestic criminal law, although these conventions provide that party countries are supposed to issue necessary implementation guidelines.[26]

The Penal Code has combined genocide with crimes against humanity into a common article on crimes against humanity. A crime against humanity has been defined as “an act to kill en-masse residents in an area, destroy the sources of their livelihood, and undermining the cultural and spiritual life of a country, upsetting the foundation of a society with a view to destroying that society, as well as other acts of genocide or acts of ecocide or destroying of the natural environment”[27] in peace or war time. As compared with the Rome Statute, this definition only touches a small part of many characteristics of crimes against humanity, and fails to truly reflect the nature of genocide.

War crimes are also mentioned in the Penal Code though in a very vague and general way compared to the Rome Statute. Article 343 states that a war crime is a person’s act “in time of war to order or directly engage in the murder of civilians, wounded persons, or prisoners of war; the looting of property, the destruction of residences, the use of prohibited weapons or methods, or other acts in serious violation of international laws or treaties to which the Socialist Republic of Vietnam has signed or acceded.” In addition, the Penal Code’s Article 340 also provides for the crime of maltreatment of prisoners of war.

For the crime of aggression, Article 341 of the Penal Code provides for the crime of waging a war of aggression as “advocating or provoking a war of aggression or preparing, conducting and taking part in a war of aggression against the independence, sovereignty and territorial integrity of another country.” Convicted persons are subject to between 2 and 20 years of imprisonment, life imprisonment or capital punishment. This article has combined the crime of undermining peace and waging a war of aggression into one crime but provides no detailed acts.

The Penal Code has provided for genocide, crimes against humanity, war crimes and the crime of aggression, but in reality, such crimes are just conceptual rather than being clearly defined. There is a gap between these provisions and the definitions provided by the related conventions and the Rome Statute.

Immunity from prosecution

Article 27 of the Rome Statute confirms that official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibi-lity under this Statute, nor shall it, in and of itself, constitute grounds for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar ICC from exercising its jurisdiction over such a person. 

This principle has eliminated the inherent immunity of heads of state and government officials, treating them equally as other individuals.

Article 52 of the 1992 Constitution states: “All citizens are equal before law.” In principle, Vietnamese law grants no immunity from penal liability to any individuals because of their title or position if they commit crimes defined in the Penal Code. However, for National Assembly deputies, immunity can be applied but limited to a certain, temporary period of time.

The Law on Organization of the National Assembly stipulates: “Without the approval of the National Assembly, or during the National Assembly recess, without the approval of the National Assembly Standing Committee, no National Assembly deputy shall be arrested or prosecuted.”[28] This does not mean that National Assembly deputies can be granted full immunity if they commit one or more crimes under the Penal Code. However, prosecution can only be initiated with the approval of the National Assembly or its Standing Committee. The Law on Organization of People’s Councils and People’s Committees has provisions on the immunity of People’s Council members during sessions.[29]  If they are to be arrested, the consent of the session presidium must be obtained. But such immunity is limited to freedom of movement, and not penal liability. In both cases, when these persons have been prosecuted and tried, they will loose their deputy rights and related immunities.

Crime and punishment

As defined in Part 7 on penalties in the Rome Statute, ICC can apply terms of imprisonment or life sentences to those charged with crimes under the jurisdiction of the Court. The maximum imprisonment is 30 years. In addition, the Court can decide to impose a fine or confiscate proceeds and property derived directly or indirectly from the crime.[30] Based on the gravity of the crime and the individual circumstances of the convicted person, an appropriate sentence will be determined.[31]

What should be noted is that the provisions of the Rome Statute do not affect the way countries apply penalties prescribed by their national laws for crimes under the jurisdiction of the ICC. Article 80 of the Rome Statute confirms that these provisions do not prejudice the application of penalties prescribed by national laws. This is a compromise between two opposite views on the application of the death penalty to such crimes as genocide, crimes against humanity and war crimes in the course of elaborating the Rome Statute.[32]  This suits the additional protocols that ICC is only complementary to national legal systems.

According to the Penal Code of Vietnam, any person who commits the crime of waging a war of aggression may be sentenced to between 10 and 20 years of imprisonment, life imprisonment or capital punishment[33]. Crimes against humanity and war crimes are subject to similar penalties.[34] As a result, according to Vietnam’s criminal law, penalties on crimes under ICC jurisdiction are not limited to life imprisonment as defined in the Rome Statute but include the death penalty. Such punishment is not uniformly applied under the Rome Statute and Vietnam’s national law. However, as per the Rome Statute, the application of the death penalty by national laws on crimes under the ICC jurisdiction is acceptable.-



[1] Article 10 of the Yugoslavia Court Statute, Article 9 of the Rwanda Court Statute.

[2] Article 343 of the 2003 Criminal Procedure Code.

[3] See Ashworth, Principles.

[4] See Bruce Broomhal, ‘Article 22 Nullum crimen sine lege’ in Otto Triffterer (ed.), Complementary on the Rome Statute of the International Criminal Court (Nomos verlagsgesellschaft Baden-Baden, 1999), p.452.

[5] Articles 341, 342 and 343 of Vietnam’s Penal Code.

[6] See Roger S. Clark, Otto Triffterer, Article 26 ‘Exclusion of jurisdiction over persons under eighteen’, in Otto Triffterer (ed.), Complementary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft Baden-Baden, 1999), p.497.

[7] See the Ministry of Justice, Scientific Comments on the 1999 Penal Code of Vietnam, Volume I General Part National Publishing House, 2001), p. 43.

[8] These crimes are extremely serious because they are subject to the highest punishments of over 15 years of imprisonment, life imprisonment or capital punishment. See Article 8 of Vietnam’s Penal Code.

[9] See Article 25, Clause 1, 2, 3(a), the Rome Statute.

[10] See Kai Ambos, ‘Article 25 Individual Criminal Responsibility’ in Otto Trifferer, supra note 4, p. 480.

[11] Black’s Law Dictionary 1392 (6th ed. 1990).

[12] Unlike vis absoluta, vis compulsiva allows certain freedom to take action and decide. See note 24, Kai Ambos, as in footnote No 10, p. 481.

[13] See the Ministry of Justice, as in citation No. 7, p. 76, 77.

[14] See William J. Fenrick, ‘Article 28 Responsibility of commanders and other superiors’, as in citation No. 4

[15] See William I. Fenrick, ‘Article 28 Responsibility of commanders and other superiors’, footnote No. 4

[16] As in above (William I. Fenrick)

[17] As in above (Willam J. Fenrick)

[18] Prosecutor v. Delalic, Mucic, Delic and Landzo, paras. 3550363 (Celebibi case).

[19] Penal Code (France) Article 7.

[20] See William A. Strabas, ‘Article 29 on non-applicability of statute of limitations’, in Otto Fri Triffterer, footnote No. 4

[21] A.G. Israel v. Eichman, (1968) 36 I.L.R. 18 (District Court), para. 53.

[22] See the Convention on non-applicability of statute of limitations to war crimes and the crime against humanity, 754 U.N.T.S. 73 (1970), the European Convention on non-applicability of the statute of limitations to the war against humanity and war crimes of January 25, 1974, E.T.S. 82.

[23] Article 23 of Vietnam’s Penal Code.

[24] See Article 2, Clause 3 of the Rome Statute.

[25] Preparatory Committee on the definition of the crime of aggression.

[26] Article 5 of the 1948 Convention on Genocide.

[27] Article 342 of Vietnam’s Penal Code.

[28] Article 50 of the Law on Organization of the National Assembly (Law No. 30/2001/QH10 passed on December 26, 2002).

[29] Article 40 of the Law on Organization of People’s Councils and People’s Committees of June 30, 1983.

[30] Article 77 of the Rome Statute.

[31] Article 78 of the Rome Statute.

[32] See Rolf f Einar Fife, ‘Article 80 Non-prejudice to national application of penalties and national laws’ in Otto Trifferer, footnote No. 4.

[33] Article 341 of Vietnam’s Penal Code.

[34] Articles 342 and 343 of Vietnam’s Penal Code.

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