Practice Relating to Rule 100. Fair Trial Guarantees

Geneva Convention III
Article 86 of the 1949 Geneva Convention III provides: “No prisoner of war may be punished more than once for the same act, or on the same charge.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 86.
Geneva Convention IV
Article 117, third paragraph, of the 1949 Geneva Convention IV states: “No internee may be punished more than once for the same act, or on the same count.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 117, third para.
International Covenant on Civil and Political Rights
Article 14(7) of the 1966 International Covenant on Civil and Political Rights provides: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(7).
American Convention on Human Rights
Article 8(4) of the 1969 American Convention on Human Rights provides: “An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.” 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(4).
Additional Protocol I
Article 75(4)(h) of the 1977 Additional Protocol I provides: “No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgment acquitting or convicting that person has been previously pronounced under the same law and judicial procedure.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(4)(h). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Protocol 7 to the European Convention on Human Rights
Article 4 of the 1984 Protocol 7 to the European Convention on Human Rights provides:
1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 
Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 22 November 1984, Article 4(1)–(2).
ICC Statute
Article 20(2) of the 1998 ICC Statute provides: “No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.” 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 20(2).
Statute of the Special Court for Sierra Leone
Article 9(1) of the 2002 Statute of the Special Court for Sierra Leone, entitled “Non bis in idem”, provides: “No person shall be tried before a national court of Sierra Leone for acts for which he or she has already been tried by the Special Court.” 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 9(1).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 12(2) of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 12(2).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Article 5 of the 2007 Statute of the Special Tribunal for Lebanon provides:
1. No person shall be tried before a national court of Lebanon for acts for which he or she has already been tried by the Special Tribunal.
2. A person who has been tried by a national court may be subsequently tried by the Special Tribunal if the national court proceedings were not impartial or independent, were designed to shield the accused from criminal responsibility for crimes within the jurisdiction of the Tribunal or the case was not diligently prosecuted.
3. In considering the penalty to be imposed on a person convicted of a crime under this Statute, the Special Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 5.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 9 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides:
1. No one shall be tried or punished for a crime under this Code for which he has already been finally convicted or acquitted by an international criminal court.
2. … No one shall be tried or punished for a crime under this Code in respect of an act for which he has already been finally convicted or acquitted by a national court, provided that, if a punishment was imposed, it has been enforced or is in the process of being enforced. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 9.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
ICTY Statute
Article 10(1) of the 1993 ICTY Statute, entitled “Non bis in idem”, provides:
No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 10(1).
ICTR Statute
Article 9(1) of the 1994 ICTR Statute, entitled “Non bis in idem”, provides:
No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal for Rwanda. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 9(1).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 12(1) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Non bis in idem”, provides: “No one shall be tried for a crime against the peace and security of mankind of which he has already been finally convicted or acquitted by an international criminal court.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 12(1).
EU Charter of Fundamental Rights
Article 50 of the 2000 EU Charter of Fundamental Rights states:
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 50.
Argentina
Argentina’s Law of War Manual (1969) provides: “A prisoner of war cannot be sentenced more than once because of the same act or on the same charge.” 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.076.
Argentina
Argentina’s Law of War Manual (1989) states: “No prisoner of war may be punished more than once for the same act or on the same charge (Article 86 [of the 1949 Geneva Convention III]).” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 3.23.
With respect to occupied territory, the manual states that “civilians shall not be punished more than once for the same fault” … and that anyone “shall be tried only once for the same offence or the same accusation in conformity with the same legislation in the same proceedings”. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, §§ 4.36 and 5.09.
Canada
Canada’s LOAC Manual (1999) provides that no prisoner of war “may be punished more than once for the same offence, or on the same charge”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 58.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs): “No PW may be punished more than once for the same offence, or on the same charge”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1039.6.
Colombia
Colombia’s Instructors’ Manual (1999) provides: “Anybody who is accused has the right … not to be tried twice for the same act”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Germany
Germany’s Military Manual (1992) provides: “Prisoners of war may not be punished or disciplined more than once for the same act.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 725.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Judicial procedure must be regular, that is, it must include at least the following guarantees: … The prisoner cannot be punished more than once for the same act or on the same charge, if it is based on the same law and the same judicial procedure.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 191.
In a section on the obligations of the occupying power under the 1949 Geneva Convention IV, the manual also states:
Judicial procedure must be regular, that is, it must include at least the following guarantees:
e. judgement must be pronounced in the presence of the accused, who may not be punished more than once for the same act or on the same charge if based on the same law and the same judicial procedures. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(C)(e).
New Zealand
New Zealand’s Military Manual (1992) provides: “No prisoner may be punished more than once for the same offence or on the same charge.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 931(1).
The manual further states: “No internee may be punished more than once for the same offence or on the same count.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1128.
The manual also provides: “No one shall be prosecuted or punished by the same party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137(4)(h).
Pakistan
The Manual of Pakistan Military Law (1987) states:
Where a person has been convicted or acquitted of an offence by a court martial or a criminal court or summarily dealt with or where the charge against him is dismissed, he is not liable to be summarily dealt with or tried by court martial for the same offence, or for an offence which is substantially the same. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 239; see also pp. 411, 416 and 587.
Peru
Peru’s IHL Manual (2004) defines the term “non bis in idem” as: “The principle that no prisoner of war, civilian internee or any other person in the hands of a party to the conflict may be punished more than once for the same act or on the same account.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.
Peru
Peru’s IHL and Human Rights Manual (2010) defines the term “non bis in idem” in its Glossary of Terms as: “The principle that no prisoner of war, civilian internee or any other person in the hands of a party to the conflict may be punished more than once for the same act or on the same account.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 410.
Spain
Spain’s LOAC Manual (1996) provides: “Prisoners of war cannot be punished more than once for the same act or the same accusation.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 8.7.b.
Spain
Spain’s LOAC Manual (2007) states: “Prisoners of war may not be punished more than once for the same act or on the same charge.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.7.b.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that a prisoner “shall be punished only once for the same act or on the same count”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 106.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “No internee may be punished more than once for the same act or on the same count.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 71.
The manual also states: “A prisoner of war may not be punished more than once for the same act or on the same charge.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 204.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
With regard to prisoners of war, the manual provides: “A prisoner of war may not be punished more than once for the same act or on the same charge.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.34.
United States of America
The US Field Manual (1956) reproduces Article 86 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 162.
The manual also uses the same wording as Article 117 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 324.
United States of America
The US Air Force Pamphlet (1976) provides: “Article 86 [of the 1949 Geneva Convention III] prohibits punishing POWs [prisoners of war] more than once for the same offence (non bis in idem).” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
Note. Numerous pieces of domestic legislation provide for the principle of non bis in idem. 
See, e.g., Ethiopia, Constitution, 1994, Article 23; Georgia, Constitution, 1995, Article 42(4); Criminal Code, 1999, Article 3(1); India, Constitution, 1950, Article 20(2); Kenya, Constitution, 1992, Article 77(5); Kyrgyzstan, Criminal Code, 1997, Article 3(3); Mexico, Constitution, 1917, Article 23; Philippines, Constitution, 1987, Article 3(21); Russian Federation, Constitution, 1993, Article 50(1).
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states: “The Supreme Court quashes the protested decision when … [it r]esults that for the same person and the same facts a previous decision was already adopted”. 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 78(1)(d).
Afghanistan
Afghanistan’s Law on Combating the Financing of Terrorism (2004) states regarding cooperation with foreign States in criminal proceedings:
Refusal to Execute Requests
1. A request for cooperation may be refused only:
(c) if the offence to which it relates is the subject of criminal proceedings or has already been the subject of a final judgment in the territory of the Islamic Republic of Afghanistan. 
Afghanistan, Law on Combating the Financing of Terrorism, 2004, Article 22(1)(c).
Afghanistan
Afghanistan’s Criminal Procedure Code for Military Courts (2006) states: “No person can be tried a second time for a single criminal act.” 
Afghanistan, Criminal Procedure Code for Military Courts, 2006, Article 10.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states: “No person can be tri[ed] twice for a single criminal act.” 
Afghanistan, Military Criminal Procedure Code, 2010, Article 10.
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or serve a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states:
Double jeopardy
A person cannot be tried by a federal court or a court of a State or Territory for an offence under this Division if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct as constituted the offence under this Division. 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.118, p. 380.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “No person shall be tried again for the criminal offence he has been already tried for and for which a legally binding decision has been rendered.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 4.
Burundi
Burundi’s Penal Code (2009), which includes a chapter on war crimes, states: “When the offence is committed abroad, it shall not be prosecuted if the accused justifies that he has been finally judged … and, in case of conviction, has undergone … his penalty”. 
Burundi, Penal Code, 2009, Article 11.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the proceedings of the Extraordinary Chambers:
The Extraordinary Chambers of the … court shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 33 new.
China
China’s Criminal Law (1979), as amended in 1997, states:
Any person who commits a crime outside the territory and territorial waters and space of the People's Republic of China, for which according to this Law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this Law, even if he has already been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment. 
China, Criminal Law, 1979, as amended in 1997, Article 10.
China
China’s Extradition Law (2000) states:
The request for extradition made by a foreign state to the People’s Republic of China shall be rejected if:
(2) at the time the request is received, the judicial organ of the People’s Republic of China has rendered an effective judgment or terminated the criminal proceedings in respect of the offence indicated in the request for extradition. 
China, Extradition Law, 2000, Article 8(2).
Colombia
Colombia’s Law on the Disciplinary Regime of the Armed Forces (2003) states: “Nobody may be investigated more than once for the same act or omission constituting an administrative offence”. 
Colombia, Law on the Disciplinary Regime of the Armed Forces, 2003, Article 9.
Croatia
Croatia’s ICC Statute Adoption Act (2003) states: “An accused whose guilt has been established by the International Criminal Court shall not be tried for the same criminal offence in the Republic of Croatia nor shall a previous domestic judgment be enforced if it relates to the same criminal offence.” 
Croatia, ICC Statute Adoption Act, 2003, Article 20(1).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides: “No person legally acquitted can be taken up again or accused for the same facts, even under a different qualification.” 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Article 268.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ethiopia
Ethiopia’s Criminal Code (2004) states:
Article 2.- Principle of Legality.
(5) Nobody shall be tried or punished again for the same crime for which he has been already convicted, punished or subjected to other measures or acquitted by a final decision in accordance with the law.
Article 15.- Crimes Committed in a Foreign Country by a Member of the Defence Forces.
(2) In cases of crimes against international law and specifically military crimes as defined in Article 269–322, the member of the Defence Forces shall remain subject to national law and be tried under the provisions of this Code by Ethiopian military courts. 
Ethiopia, Criminal Code, 2004, Articles 2(5) and 15(2).
Guatemala
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states: “Non bis in idem principle. No adolescent may be prosecuted more than once for the same acts unless the legal qualification is modified or new evidence is brought forward.” 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Article 150.
India
India’s Assam Rifles Act (2006) states:
(1) When any person subject to this Act has been acquitted or convicted of an offence by an Assam Rifles Court or by a criminal court or has been dealt with under section 62 or section 64 or section 65 or section 66, he shall not be liable to be tried again for the same offence by an Assam Rifles Court or dealt with under the said sections.
(2) When any person, subject to this Act has been acquitted or convicted of an offence by an Assam Rifles Court or has been dealt with under section 62 or section 64 or section 65 or section 66, he shall not be liable to be tried again by a criminal court for the same offence or on the same facts. 
India, Assam Rifles Act, 2006, Section 97.
India
India’s Sashastra Seema Bal Act (2007) states:
(1) When any person, subject to this Act has been acquitted or convicted of an offence by a Force Court or by a criminal court or has been dealt with under section 56 or section 58, he shall not be liable to be tried again for the same offence by a Force Court or dealt with under the said sections.
(2) When any person, subject to this Act, has been acquitted or convicted of an offence by a Force Court or has been dealt with under section 56 or section 58, he shall not be liable to be tried again by a criminal court for the same offence or on the same facts. 
India, Sashastra Seema Bal Act, 2007, Section 87.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
First: No person shall be tried before any other Iraqi court for crimes for which he has already been tried by the Tribunal, in accordance with Articles 300 and 301 of the Code of Criminal Procedure.
Second: A person who has been tried by any Iraqi court for a crime or crimes within the jurisdiction of the Tribunal may not be subsequently tried by the Tribunal unless the Tribunal determines that the previous court proceedings were not impartial or independent, or were designed to shield the accused from criminal responsibility. When taking a decision to order a retrial, one of the conditions contained in Article 196 of the Code of Civil Procedure and the requirements of Article 303 of the Code of Criminal Procedure must be met. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 30(1) and (2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 86 of the Geneva Convention III and Article 117 of the 1949 Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(h), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to “double jeopardy”:
A person shall not be tried for an act of which he was acquitted or convicted previously, due to it constituting an offense, in a judgment given by a military court in the Area [Judea and Samaria] or in an occupied area or by a court in Israel; however, if the act caused a person’s death, he shall be tried for it even if he was previously charged for a different offense for the same act. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 188(b).
Nepal
Nepal’s Army Act (2006) states:
Any person under the jurisdiction of this Act, after being subjected to trial, hearing and adjudication of an offence mentioned in Section 38 to 65 of this Act by a Court Martial, or after being subjected to departmental action, shall not be subjected to action again for the same offence. 
Nepal, Army Act, 2006, Section 70.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Norway
Norway’s ICC Act (2001) provides: “No person may be prosecuted or convicted in the realm for conduct for which the said person has been convicted or acquitted by the [International Criminal] Court.” 
Norway, ICC Act, 2001, § 9.
Peru
Peru’s New Code of Criminal Procedure (2004) states:
No person shall be prosecuted or punished more than once for the same act if the subject and grounds are the same. This principle shall apply to both penal and administrative sanctions. … The exception to this norm shall be the revision by the Supreme Court of a conviction and sentence in the cases explicitly allowed by the present Code. 
Peru, New Code of Criminal Procedure, 2004, Article III.
Peru
Peru’s Code of Military and Police Justice (2006) states under the title “Prohibition of Double Jeopardy”: “No member of the military or police shall be prosecuted or penalized more than once if the subject, act and legal basis are the same.” 
Peru, Code of Military and Police Justice, 2006, Article VI(1); see also Article 151.
The Code also states:
The principle of non bis in idem shall be applicable to crimes contained in this Title [of the present Law] and with respect to the competence of the International Criminal Court.
The principle shall not apply if the domestic proceedings
a) are conducted for the purpose of shielding the person concerned from criminal responsibility for a crime within the jurisdiction of the International Criminal Court;
b) were not conducted independently or impartially in accordance with the norms of due process recognized by international law or were conducted in a manner which, in light of the circumstances of the case, was incompatible with an intent to bring the person concerned to justice. 
Peru, Code of Military and Police Justice, 2006, Article 88.
Peru
Peru’s Law on the Disciplinary Regime of the Armed Forces (2007) states: “Non bis in idem. No person shall be subsequently or simultaneously subjected to a criminal or administrative sanction for the same act if the subject, act and grounds are the same.” 
Peru, Law on the Disciplinary Regime of the Armed Forces, 2007, Article IV.
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in the Preliminary Title: “No member of the police or the military shall be criminally prosecuted or punished more than once in the Military and Police Court for the same subject, act and on the same legal basis.” 
Peru, Military and Police Criminal Code, 2010, Article XIII.
The Code also states:
Regarding crimes included in the present Title [namely crimes committed in states of emergency and in violation of international humanitarian law] and regarding [crimes within] the jurisdiction of the International Criminal Court, the principle Non Bis in Idem must be applied.
This principle does not apply if the domestic proceedings:
a. Have the purpose of shielding the accused from criminal responsibility for a crime within the jurisdiction of the International Criminal Court.
b. Have not been independent or impartial in accordance with the proper procedural guarantees recognized by international law or have in any way, depending on the circumstances of the case, been incompatible with the intention of bringing a person to justice. 
Peru, Military and Police Criminal Code, 2010, Article 79.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides: “No person who has already been convicted or acquitted by the ICC shall be tried under this Act.” 
Republic of Korea, ICC Act, 2007, Article 7.
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(9) No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal; and no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence:
Provided that nothing in any law shall be held to be inconsistent with or in contravention of this subsection by reason only that it authorises any court to try a member of a defence force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under service law; but any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under service law.
(10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section … to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency.
29. Public emergency.
(2) The President may issue a Proclamation of a state of public emergency only when –
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof. 
Sierra Leone, Constitution, 1991, Sections 23(9)–(10) and 29(2) and (5).
Spain
Spain’s Law on Judicial Power (1985), as amended in 2009, states:
2. … [Spanish courts] have jurisdiction over acts that constitute offences according to Spanish penal law even if these were committed outside the national territory, as long as those criminally responsible were Spanish nationals or foreigners who had acquired Spanish nationality prior to the commission of the act, and if the following conditions are met:
c. That the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence abroad. If he or she only completed it partly, this will be taken into account in order to proportionally reduce the [sentence] which he or she must complete.
4. Spanish courts have jurisdiction over offences committed by Spanish and foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to that disposed by the treaties and international conventions that Spain is a party to, in order for Spanish tribunals to have jurisdiction over the above-mentioned offences it must be demonstrated … that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or within an international tribunal.
The prosecution initiated before Spanish courts will be temporarily dismissed when it is established that another process on the denounced acts has been initiated in the country or tribunal referred to in the above paragraph.
5. If the prosecution is transferred to Spain according to the conditions in … paragraph 4, paragraph 2(c) of this article will in any case be applicable. 
Spain, Law on Judicial Power, 1985, as amended on 3 November 2009, Article 23(2)(c) and (4)(h) and (5).
Sri Lanka
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
PART X
OFFENCES IN RELATION TO PRISONS
87. (1) Any jailer or subordinate prison officer charged with ill-treating a prisoner, … may be dealt with in accordance with the regulations for the time being in force relating to the dismissal or other punishment of public officers,
(2) Every jailer or subordinate prison officer, who ill-treats a prisoner[,] … shall be guilty of an offence and may, where he is not in the discretion of the Commissioner-General [dealt] with under subsection (1), be prosecuted in the Magistrate’s Court …
(3) No person shall be punished both under subsection (1) and under subsection (2) for the same offence. 
Sri Lanka, Prisons Ordinance, 1878, as amended to 2005, Articles 87.
This article applies to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
Provided there has been no serious violation of the fundamental principles of the constitution and the European Convention on Human Rights of 4 November 1950, the person prosecuted abroad upon a request by the Swiss authorities may no longer be prosecuted in Switzerland for the same act:
a. if he has been acquitted abroad by a final judgment;
b. if the sanction which has been pronounced against him abroad has been executed, irrespective of whether it has been waived or become time-barred. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 10(3).
Switzerland
Switzerland’s Penal Code (1937), as amended to 2009, states with regard to crimes or offences committed abroad:
Provided there has been no serious violation of the fundamental principles of the constitution and the ECHR [European Convention on Human Rights], the perpetrator may no longer be prosecuted in Switzerland for the same act:
a. if he has been acquitted abroad by a final judgment;
b. if the sanction which has been pronounced against him abroad has been executed, waived or has become time-barred. 
Switzerland, Penal Code, 1937, as amended in 2009, Article 7(4).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a title on war crimes, states in the book on general provisions:
Art. 3
1 Any person who commits a felony or misdemeanour in Switzerland is subject to this Code.
2 If the person concerned has served a sentence in full or in part for the offence in another country, the Swiss court must take the sentence served into account in determining the sentence to be imposed.
3 If the person concerned has been prosecuted in a foreign country at the request of the Swiss authorities, then unless the offence involves a gross violation of the principles of the Federal Constitution or the [1950 European Convention on Human Rights] (ECHR), he shall not be prosecuted in Switzerland for the same offence if:
a. the foreign court has acquitted him and the judgment has taken full legal effect;
b. the penalty to which he had been sentenced in the foreign country has been served, suspended or is subject to a statute of limitations. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 3(1)–(3); see also Article 4(1) and (2).
[footnote in original omitted]
The Code further states:
Art. 6
1 Any person who commits a felony or misdemeanour abroad that Switzerland is obliged to prosecute under an international agreement is subject to this Code provided:
a. the act is also liable to prosecution in the State where it was committed or no criminal law jurisdiction applies at the place of commission; and
b. the person concerned remains in Switzerland and is not extradited.
2 The court shall determine the sentence so that overall the person concerned is not treated more severely than would have been the case under the law at the place of commission.
3 Unless the offence involves a gross violation of the principles of the Federal Constitution and of the ECHR, the person concerned shall not be liable to further prosecution in Switzerland if:
a. he has been acquitted of the offence abroad in a legally binding judgment;
b. the sentence that was imposed abroad has been executed, waived, or is subject to a statute of limitations. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 6(1)–(3).
[footnote in original omitted]
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states: “No person who has been convicted or acquitted in Switzerland by a final legally binding judgment may be prosecuted again for the same offence.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 11(1).
Uganda
Uganda’s Defence Forces Act (2005) provides:
216. Autrefois acquit and autrefois convict
(1) A person, in respect to whom a charge of having committed a service offence has been dismissed, or who has been found guilty or not guilty by a military court or civil court on a charge of having committed any such offence, shall not be tried again by any court in respect of that offence or any other offence of which he or she might have been found guilty on that charge. 
Uganda, Defence Forces Act, 2005, § 216.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“ …
§ 949h. Former jeopardy
“(a) IN GENERAL.—No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense.
“(b) SCOPE OF TRIAL.—No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602 and 2612, §§ 948b(a) and 949h.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 949h. Former jeopardy
“(a) IN GENERAL.—No person may, without the person’s consent, be tried by a military commission under this chapter a second time for the same offense.
“(b) SCOPE OF TRIAL.—No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. 
United States, Military Commissions Act, 2009, § 949h.
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “The remission, dismissal or acquittal of a case impedes a new investigation or trial against an adolescent for the same act, even if the charge is modified or if new circumstances come to light.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 547.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
No one may be prosecuted more than once for the same act.
However, a new prosecution will be admissible when:
1. The first was carried out before a tribunal that did not have competency to hear the matter, and it concluded the proceedings for this reason.
2. When the first was rejected due to shortcomings in the … [proceedings]. 
Venezuela, Penal Procedure Code, 2009, Article 20.
The Code further states: “The … termination of proceedings … [p]revents any new prosecution for the same act against the indicted or accused [person] in whose favour the proceedings ruled, except as provided for in Article 20 of this Code”. 
Venezuela, Penal Procedure Code, 2009, Article 319.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
No one may be prosecuted more than once for the same act.
A new prosecution will be admissible when:
1. The first was carried out before a tribunal that did not have competency to hear the matter, and it concluded the proceedings for this reason.
2. When the first was rejected due to shortcomings in the … [proceedings]. 
Venezuela, Penal Procedure Code, 2012, Article 20.
The Code further states: “The … termination of proceedings … [p]revents any new prosecution for the same act against the indicted or accused [person] in whose favour the proceedings ruled, except as provided for in Article 20 of this Code”. 
Venezuela, Penal Procedure Code, 2012, Article 301.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(6) No person who shows that he has been tried by a competent court for a criminal offence upon a good indictment, summons or charge upon which a valid judgment could be entered and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save–
(a) where a conviction and sentence of the High Court or of a court subordinate to the High Court are set aside on appeal or review on the ground that evidence was admitted which should not have been admitted or that evidence was rejected which should have been admitted or on the ground of any other irregularity or defect in the procedure; or
(b) otherwise upon the order of the Supreme Court or the High Court in the course of appeal or review proceedings relating to the conviction or acquittal.
(7) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.
(13) Nothing contained in or done under the authority of any law shall be held in contravention of–
(d) subsection (6) to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the appropriate disciplinary law, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 18(6)–(7) and (13)(d) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(m) not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may–
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 70(1)(m), 86(2)(b) and (3)(e), and 87(1) and (4).
Colombia
In 2003, in the Constitutional Case No. C-004/03, the Plenary Chamber of Colombia’s Constitutional Court stated:
11. … It would seem reasonable to argue that allowing the revision of a final sentence whenever new evidence or facts arise to the detriment of a person already acquitted or convicted would mean to allow a person to be tried twice for the same act, in contravention of the non bis in idem principle.
13. It is … possible to limit the right to non bis in idem in order to protect other constitutional rights and values that are of greater relevance. The rights of the victims of criminal acts and the corresponding State duty to investigate and punish crime and thus achieve justice and maintain a just social order (Preamble and Articles 2 and 229 of the Constitution) are obviously constitutional values that can clearly clash with the non bis in idem principle and that may authorize or even require that this constitutional guarantee be limited. In cases where a person is acquitted of a crime, but new facts or evidence arise and suggest the person might be guilty, a clear legal tension arises between, on one hand, the guarantee that the person should not be tried again and on the other the rights of victims and the State duty to investigate crime and punish those responsible and thus maintain a just social order. Thus, the normative value of the non bis in idem principle indicates the acquitted person should not be tried again, in spite of the new facts and evidence. However, the State duty to investigate crimes and protect the rights of victims as a means to obtain a fair social order would seem to imply that the person must be tried again, in particular if the crimes in question constitute violations of human rights. The question that arises is, then, whether the rights of the victims of punishable acts are sufficiently important to not only allow but demand that the principle of non bis in idem be limited when regulating the possibility of judicial review.
24. … The rights of victims acquire an importance that is directly proportional to the seriousness of the criminal act. The greater the social harm caused by a crime, the greater consideration must be given to the rights of the victims of such crime. Moreover, the State duty to investigate punishable acts is also directly proportional to the way in which the crime may have affected fundamental legally protected values. As the seriousness of a punishable act increases, the level of State commitment to investigate it and punish those responsible must also increase as a means to maintain a just social order (Constitution, preamble and article 2). Violations of human rights and grave breaches of international humanitarian law constitute the types of behaviour that most intensely disregard people’s dignity and cause pain for the victims and those directly affected. For these reasons, the rights of victims and those affected by such abuses deserve the highest level of protection and the State duty to investigate and punish these conducts acquires greater relevance.
27. In accordance with what was previously stated and to achieve and maintain a just social order (Preamble and Article 2 of the Constitution), the State duty to investigate and punish violations of human rights and grave breaches of international humanitarian law carries more weight than the duty to investigate and punish a crime in general, without minimising the latter. In the same sense, the rights of victims and those affected by violations of human rights or grave breaches of international humanitarian law have a greater significance than the rights of victims of crime in general, though this is not to say that the latter are unimportant. For this reason the distinction between, on one hand, crimes in general and, on the other, violations of human rights and international humanitarian law becomes more important when examining the proportionality of the provisions under review. This means that favouring impunity for such violations is much more serious and unacceptable, not only due to the intensity with which human dignity is negatively affected by such conduct, but also because of the fact that the international community, based on the principle of complementarity, is committed to punish such conduct.
30. The Court thus concludes that the rights of victims are indeed affected in a particularly intense way (Article 229 of the Constitution), creating a serious obstacle to the maintenance of a just social order (Article 2 of the Constitution), if impunity for violations of human rights or serious violations of international humanitarian law prevails. Such impunity is even more serious if it is the result of the State of Colombia not complying with its duty to investigate in a serious and impartial manner such violations of human rights or international humanitarian law with a view to punishing those responsible.
The legal strength of the constitutional rights of the victims and the obligation imposed by the Constitution on authorities to achieve and maintain a just social order (Article 2 of the Constitution) mean that in cases of violations of human rights or grave breaches of international humanitarian law, should new facts or evidence arise that allow the identification of those responsible for such heinous acts, then investigations may be reopened, even against the existence of final decisions of acquittal with the authority of res judicata. The reason for this is that an absolute prohibition against reopening such investigations impedes the achievement of a just social order and entails an extreme sacrifice of the rights of victims. Consequently, in all cases involving impunity for violations of human rights or international humanitarian law, the construction of a just social order and the rights of victims replace the protection of the principle of legal certainty and the principle of non bis in idem. Thus a final decision of acquittal with the strength of res judicata must not impede the reopening of an investigation into such conduct, should new facts or evidence arise that were unknown at the time of trial. Legal certainty in a democratic society founded on human dignity cannot be built on the basis of silencing the pain and cries for justice of the victims of the most heinous conduct such as violations of human rights and grave breaches of international humanitarian law.
32. As previously explained, impunity for violations of human rights and international humanitarian law is more serious when the State has blatantly breached its duty to investigate and punish such crimes. In such cases, prioritising the rights of victims and a just social order over legal certainty and the principle of non bis in idem is even more necessary for the following reasons: On one hand, for victims and those affected by violations of human rights the situation is unbearable in two respects. Not only has their human dignity been violated by the commission of heinous acts, but they must also endure the State’s indifference towards their situation, thus breaching its obligation to clarify the facts, punish those responsible and compensate those affected.
On the other hand, a possible judicial review of those cases where the State blatantly breached its duty to seriously investigate these violations of human rights does not have a strong impact on the principle of legal certainty. This is because the authorities did not carry out a serious and impartial investigation of the punishable acts. Since the State did not fulfil its obligation to investigate, the person acquitted was never seriously investigated nor tried, and therefore a reopening of the investigation does not seriously affect the principle of non bis in idem. This can occur, for example, if the investigation is carried out so negligently that it clearly does not intend to clarify the facts but to acquit the accused. This would also be the case whenever the judicial officers lack the independence and impartiality that would be required to actually speak of due process.
It is thus clear that in cases of impunity for violations of human rights or grave breaches of international humanitarian law resulting from the State’s blatant inability to fulfil its duty to punish such conduct, in reality there is no res judicata. In such cases, the rights of victims overrule the non bis in idem guarantee. Thus, the existence of a decision to acquit formally considered res judicata must not impede the reopening of an investigation, even when no new facts or evidence arise, because the res judicata is a mere illusion.
35. … In such a context, this Court considers that in cases where the State has been blatantly negligent in bringing justice to the victims of violations of human rights and international humanitarian law, for a judicial revision of the case to proceed without any new fact or piece of evidence unknown during the previous judicial process, a declaration from a competent body confirming that the State blatantly breached its obligation to seriously investigate such a violation shall be necessary. In order to provide the necessary protection to the acquitted person, such confirmation must be granted by an impartial and independent body. Within the domestic legal order, such a declaration can only be provided by a judicial authority. 
Colombia, Constitutional Court, Constitutional Case No. C-004/03, Judgment of 20 January 2003, §§ 11, 13, 24, 27, 30, 32 and 35.
Colombia
In 2004, in the Constitutional Case No. T-114/04, the Fourth Appeals Chamber of Colombia’s Constitutional Court stated:
Developing a new constitutional approach to the rights of the victim or of the affected person during a criminal process, the Constitutional Court, in Case C-004-03, M. P. Eduardo Montealegre Lynnet, declared constitutional Article 220, subsection 3, of Law 600 of 2000 (the Code of Criminal Procedure). This provision limits the applicability of grounds for constitutional review of convictions. [The Court understood that] a judicial review based on such grounds would also be allowed in cases of closed investigations, terminated proceedings or acquittals if the case involved violations of human rights or grave breaches of international humanitarian law. For such a judicial review, the case had to be the subject of a domestic judicial decision or a decision by an international body that is mandated to supervise and control respect for human rights and officially accepted by our country. This decision must certify the existence of a new fact or piece of evidence not known at the time of the trial. The judicial review of the closure of the investigation, the termination of the proceedings and the acquittal must also be allowed. In cases involving violations of human rights or grave breaches of international humanitarian law, judicial review must be allowed even if there is no new fact or piece of evidence unknown at the time of the trial if a domestic judicial decision or a decision by an international body mandated to supervise and control respect for human rights officially accepted by our country certifies the blatant non-compliance of the State of Colombia with its obligation to seriously and impartially investigate the aforementioned violations. 
Colombia, Constitutional Court, Constitutional Case No. T-114/04, Judgment of 12 February 2004, § 2.
Colombia
In 2005, in the Constitutional Case No. C-979/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he legal force of the principle of non bis in idem, which stipulates that it is impossible to alter or otherwise modify a judgment of acquittal that is in favour of the accused, must cede to the duty of the State to investigate the crimes and punish those responsible in order to maintain a just social order, particularly when referring to crimes constituting violations of human rights and grave breaches of international humanitarian law. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 10.
The Court further held:
[T]he review of a case shall proceed if the following conditions are fulfilled:
(i) The petition for review is filed against a final judgment of acquittal regarding violations of human rights or grave breaches of international humanitarian law;
(ii) A decision by an overriding international body whose function is to supervise and control human rights and whose jurisdiction has been accepted by the State of Colombia establishes a blatant failure by the State to comply with its obligation to investigate such violations in a serious and impartial way. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 11; see also § 17.
The Court explained the reasons for the above findings as follows:
Conduct for which review of a case proceeds – violations of human rights and grave breaches of international humanitarian law – constitutes the most serious behaviour entailing greater potential for violating the victims’ fundamental rights and a greater capacity to inflict pain on victims and negatively affected persons. It also has a huge destabilizing effect on a community. These characteristics underscore the need to fulfil the duty of public authorities to investigate and demand an enhanced protection of the rights of victims. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 13.
The Court further justified the limitation of the non bis in idem principle as follows:
[I]mpunity for violations of human rights and international humanitarian law is much more serious and unacceptable than the grievances resulting from other forms of criminality not only due to the intensity by which human dignity is negatively affected, but also because the international community, as a result of the principle of complementarity, is committed to punish such conduct. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 16.
The Court also held:
20. Whenever we are dealing with serious violations of human rights and grave breaches of international humanitarian law … , a wide and protective view of the rights of victims becomes especially relevant, not only because the Court’s case law is based on international developments regarding these issues, but also because in these cases it is the victims themselves and their personal characteristics who embody the legal value that is protected through the penalization of this conduct whose unlawfulness transcends national borders.
Thus, it is clear that the rights of victims to reparations, to know what happened and to see justice done in their case is the corollary to the obligation of the State to seriously investigate punishable conduct, an obligation proportional to the magnitude of the individual and social harm caused by such punishable conduct.
Consequently, when it comes to violations of human rights and grave breaches of international humanitarian law, the obligation to seriously investigate and punish those responsible and to restore, to the extent possible, the victims’ rights, becomes particularly important so that a State’s omission produces a situation of impunity that endangers not only the domestic legal order, but also affects its international equivalent, given the importance of the legal values at stake.
22. Taking into account its legislative powers in this area and in view of the State’s duty to protect the rights of victims of violations of human rights and grave breaches of international humanitarian law, Congress has allowed for the reopening, by means of a review, of cases dealing with such crimes which ended in acquittals. However, in order to make this compatible with the principle of res judicata and non bis in idem, which, as a general rule, protect the person acquitted, Congress required special precautions such as making the possibility of review conditional on a decision by an international body.
There is, thus, no reason to oppose extending the possibility of reopening, by means of a review, to cases that concluded with convictions if an international body determined they were the result of the State’s blatant non-compliance with its duty to seriously and impartially investigate, making these convictions only an appearance of justice, thereby tolerating or promoting impunity for actions despised both at the constitutional and international level.
These precautions, which aim to preserve the principle of non bis in idem for common crimes, are found in explicit terms in the rule containing the provision currently under constitutional review because the reopening of a case can occur only by means of an extraordinary procedure, applies only to crimes with the highest capacity for harm such as crimes against human rights and international humanitarian law, and is subject to a pronouncement by an international body regarding the State’s non-compliance with its obligation to investigate and punish those crimes. The logic behind the possibility of review, once the provision under scrutiny is excluded, leaves the principle of non bis in idem intact for common crimes …
23. On the other hand, it cannot be forgotten that extending the possibility of reviewing a case to convictions responds to the need to take into account the right of the accused to a due process of law and promotes a just social order, as it would not be legitimate to uphold the res judicata in cases where an international body, exercising a mandate recognised by the State of Colombia, declared that the investigation that led to the conviction was not serious or impartial. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, §§ 20 and 22–23.
[emphasis in original]
France
In 2008, in the “Disappeared of the Beach” case, France’s Criminal Chamber of the Court of Cassation held:
[T]he domestic judge, when he receives a case based on a universal jurisdiction clause, shall ensure that the res judicata which took place abroad does not hinder the prosecution in France. … This assessment, which is a condition to the legality of the public prosecution, shall be effective and take place in the preparatory phase of the criminal proceedings established in France … If the investigating chamber fails to proceed with such assessment, the interested parties shall benefit, without discrimination, of a useful and effective remedy to hinder the commencement of the public prosecution. 
France, Court of Cassation (Criminal Chamber), “Disappeared of the Beach” case, Judgment, 9 April 2008, p. 7.
Germany
In 2010, in the Italian Partisans case, Germany’s Federal Court of Justice was called upon to decide a case concerning the killing of nine Italian civilians in Tuscany in June 1944 by German troops. The accused, who was a German officer at the time, had been convicted of ten counts of murder by a German regional court. In his appeal, the accused claimed that his trial had violated the principle of ne bis in idem. The Court held:
6
1. … [O]n 28 September 2006, a military court in La Spezia (Italy) already sentenced the accused in absentia to life imprisonment for his acts [in Tuscany in June 1944].
7
a) The prohibition of double jeopardy under Article 54 of the [1990] Convention Implementing the Schengen Agreement … is not breached in this case. This provision is in principle applicable to judgments rendered after trials at which the accused was not present. The application of this provision [Article 54 of the Convention Implementing the Schengen Agreement] requires that the judgment of 28 September 2006 has either already been executed, is being executed at the moment or can no longer be executed under the law of the State which rendered the judgment (in this case: Italy). All this is not the case. The prison sentence rendered in Italy is not being executed. However, the sentence could be executed under Italian law, as the competent Italian authority confirmed …
10
(1) Italy has not yet requested the extradition of the accused. There are not concrete reasons to consider that this might change. …
11
(2) Neither has Italy requested Germany to execute the judgment of 29 September 2006. …
12
All in all, it follows that the judgment of 28 September 2006 does not constitute a procedural bar because for both legal and practical reasons, the execution of the judgment is not to be expected in Italy or Germany. 
Germany, Federal Court of Justice, Italian Partisans case, Decision, 25 October 2010, §§ 6–7 and 10–12.
Peru
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated:
The ne bis in idem principle consists of the prohibition to prosecute someone twice for the same facts. The principle has two components, namely a substantive and a procedural one. The former involves a prohibition to punish a person twice for the same facts. The latter prohibits conducting two criminal proceedings against the same person and for the same facts, even if the legal characterisation of the facts is different. 
Peru, Supreme Court of Justice, Second Provisional Criminal Chamber, Lucanmarca case, Case No. 5835-2006, Judgment of 26 November 2007, p. 46.
Peru
In 2007, in the Bustios Saavedra case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated:
The principle of non bis in idem is recognised under Article 139.13 of the Constitution and is based on a prohibition to reopen proceedings after a final judgment was rendered or on the prohibition against double jeopardy which may be consecutive or simultaneous. This constitutional provision also states that the stay of proceedings also has the effect of res judicata. This principle prohibits a state from prosecuting a person twice for the same offence or acts. 
Peru, Supreme Court of Justice, National Criminal Chamber, Bustios Saavedra case, Case No. 034-06, Judgment of 2 October 2007, p. 6.
The Court also stated:
The Constitutional Court has established that no fundamental right is unlimited and that no fundamental right can subordinate other fundamental rights, principles or values also protected by the Constitution. Exceptions to the non bis in idem principle are based on states’ obligation to investigate, prosecute and punish. A person’s right to be protected against successive proceedings initiated by the state must be taken into account together with the requirement that all perpetrators of violations of international human rights law be brought to justice.
More specifically, when the right of an accused not to be subjected to multiple proceedings for the same crime is set against the right of a victim to obtain redress for grave violations of human rights, the state must attempt to diligently fulfil its obligation to investigate, prosecute and punish. International law accepts an exception to the non bis in idem principle if justice has been administered illegitimately. In international law, there are three types of proceedings that are considered sufficiently illegitimate so as to allow a second trial: a) trials that were neither impartial nor independent; b) trials aimed at protecting the accused from international criminal responsibility; and c) trials that were not conducted with due diligence. International law allows military or police personnel previously acquitted by a military court for serious violations of human rights to be put on trial before civilian courts. Proceedings for violations of human rights conducted by military courts do not satisfy the standards of impartiality, independence or competence established by international law and consequently the principle of ne bis in idem is not applicable. 
Peru, Supreme Court of Justice, National Criminal Chamber, Bustios Saavedra case, Case No. 034-06, Judgment of 2 October 2007, pp. 6–8.
Philippines
In its judgment in the Tujan case in 1998, the Philippine Supreme Court stated:
Article III of the Constitution provides:
“Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”
In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must have obtained in the first criminal action: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. 
Philippines, Supreme Court, Tujan case, Judgment, 1 April 1998.
[emphasis in original]
Philippines
In its judgment in the Lumilan case in 2000, the Philippine Supreme Court stated:
Under Sec. 7 of Rule 117 of the Revised Rules of Court, double jeopardy lies when after the accused has pleaded to the first offense charged in a valid complaint or information and he is subsequently convicted or acquitted or the case against him is dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, he is prosecuted for a second offense or any attempt to commit the same or frustration thereof or any other offense, which necessarily includes or is necessarily included in the offense charged in the former complaint or information. 
Philippines, Supreme Court, Lumilan case, Judgment, 25 January 2000.
Philippines
In its judgment in the Espinosa case in 2003, the Philippine Supreme Court stated:
A waiver of the constitutional right against double jeopardy must be clear, categorical, knowing and intelligent. Corollary to this rule, the alleged conditions attached to an arraignment must be unmistakable, express, informed and enlightened. Otherwise, the plea should be deemed to be simple and unconditional.
The right against double jeopardy is enshrined in Section 21 of Article III of the Constitution, which reads:
“No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”
This constitutionally mandated right is procedurally buttressed by Section 17 of Rule 117 of the Revised Rules of Criminal Procedure. To substantiate a claim for double jeopardy, the following must be demonstrated:
“x x x (1) [A] first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.
“And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused.”
It has been the unwavering position of this Court that substantial rights cannot be trifled with or cast aside on the basis of mere suppositions and conjectures. The relinquishment of a constitutional right has to be laid out convincingly. Such waiver must be clear, categorical, knowing and intelligent. 
Philippines, Supreme Court, Espinosa case, Judgment, 15 August 2003.
Spain
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
a) In the legal framework, Article 23(5) of the L.O.P.J. establishes a first limitation, as Spanish courts have jurisdiction over offences committed by Spanish and foreign [nationals] outside the national territory, which may constitute acts that, according to international treaties and conventions, must be prosecuted in Spain … However, this is only the case provided that the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence or has only completed it partly (Article 23(2)(c) of the L.O.P.J.).
In addition, Article 17 of the [1998] … ICC Statute … offers certain criteria on the admissibility and inadmissibility to hear situations referred to it when certain circumstances are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: … [t]he proceedings were or are being undertaken. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
The Court further noted:
b) In jurisprudence, the principle of universal jurisdiction has also been qualified by important nuances.
a) The S.T.C. 237/05 [Constitutional Court judgement] of 26 September 2005 (Guatemala case) and STC 227/07 of 22 October 2007 (Falun Gong case) [judgement] have established the following criteria on the matter:
2.- Concerning the tension between the principle of concurrence and the principle of subsidiary [jurisdiction], it is noted that there are important reasons … that have resulted in the prioritization of the locus delicti, which is part of the body of International Criminal Law. Based on this fact, … it is true that … the principle of subsidiarity should not be seen as a rule opposed to, or diverging from, that which introduces the principle of concurrence as, in view of concurrent jurisdictions and in order to avoid the eventual duplication of processes and the infringement of the principle of ne bis in idem, the introduction of a rule of prioritization is indispensable. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 5–6.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
The Bolivarian Republic of Venezuela and the Republics of Bolivia, Colombia, Ecuador and Peru signed the Bolivarian Extradition Agreement on 18 July 1911 in Caracas … [which provides]:
Article 5.- Extradition shall not be granted in the following cases:
c) If the individual whose extradition is requested has already been judged and set free or has served his or her sentence, or if the acts of which he or she is accused have been the object of an amnesty or a pardon. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, pp. 4–5.
[emphasis in original]
Austria
Upon ratification of the 1977 Additional Protocol I, Austria stated: “Article 75 of Protocol I will be applied insofar as sub-paragraph (h) of paragraph 4 is not incompatible with legal provisions authorizing the reopening of proceedings that have resulted in a final declaration of conviction or acquittal.” 
Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 3(b).
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated: “No one shall be tried again for an offence for which he or she has already been convicted by a legally effective court decision. Criminal proceedings against a person who was acquitted by a final court decision may not be reopened.” 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 213.
Denmark
Upon ratification of the 1977 Additional Protocol I, Denmark stated:
Denmark expresses a reservation with regard to the application of Article 75, paragraph 4 (h) (Protocol I), to the effect that the provisions of this paragraph shall not prevent the reopening of criminal proceedings in cases where the rules of the Danish Code of civil and criminal procedure, in exceptional circumstances, provide for such a measure. 
Denmark, Reservation made upon ratification of the 1977 Additional Protocol I, 17 June 1992.
Finland
Upon ratification of the 1977 Additional Protocol I, Finland stated:
With reference to Article 75, paragraph 4 (h) of the Protocol, the Finnish Government wish to clarify that under Finnish law a judgement shall not be considered final until the time-limit for exercising any extraordinary legal remedies has expired. 
Finland, Reservations made upon ratification of the 1977 Additional Protocol I, 7 August 1980, § 3.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated:
Article 74, paragraph 4, subparagraph (h) of Additional Protocol I will only be applied to the extent that it is in conformity with legal provisions which permit under special circumstances the re-opening of proceedings that had led to final conviction or acquittal. 
Germany, Declarations made upon ratification of the 1977 Additional Protocols I and II, 14 February 1991, § 8.
Iceland
Upon ratification of the 1977 Additional Protocol I, Iceland stated that its ratification was “subject to a reservation with respect to Article 75, paragraph 4(h), of Protocol I regarding the resumption of cases which have already been tried, the Icelandic law containing detailed provisions on this matter”. 
Iceland, Reservations made upon ratification of the 1977 Additional Protocol I, 10 April 1987.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997, Chapter 5.
Liechtenstein
Upon ratification of the 1977 Additional Protocol I, Liechtenstein stated in relation to Article 75 that “paragraph 4(h) is not incompatible with legislation providing for the reopening of a trial which has already led to a person’s conviction or acquittal”. 
Liechtenstein, Reservations made upon ratification of the 1977 Additional Protocol I, 10 August 1989, § 1(b).
Malta
Upon ratification of the 1977 Additional Protocol I, Malta stated in relation to Article 75 that “sub-paragraph (h) of paragraph 4 is not incompatible with legal provisions authorizing the reopening of proceedings that have resulted in a final declaration of conviction or acquittal”. 
Malta, Reservations made upon accession to the 1977 Additional Protocols I and II, 17 April 1989, § 1(b).
Pakistan
In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated the following principle from its Constitution: “No person can be prosecuted for the same offence more than once, and no one shall be compelled to give self-incriminating evidence (art. 13).” 
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 366.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
151. According to Article 99, paragraph 11, of the Constitution of the Federal Republic of Yugoslavia, enactments adopted during a state of war may throughout the duration of the state of war restrict various rights and freedoms of man and the citizen, except specific rights and freedoms guaranteed by the Constitution (… protection from trial or punishment a second time for an offence for which the proceedings have been legally suspended or the charges rejected or for which the perpetrator has been acquitted by a court decision …
153. Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … right to a fair trial; … ne bis in idem. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, §§ 151 and 153.
Sweden
Upon ratification of the 1977 Additional Protocol I, Sweden stated in relation to Article 75 that “paragraph 4, sub-paragraph (h) shall be applied only to the extent that it is not in conflict with legal provisions which allow, in exceptional circumstances, the reopening of proceedings which have resulted in a final conviction or acquittal”. 
Sweden, Reservations made upon ratification of the 1977 Additional Protocol I, 31 August 1979, § 2.
Switzerland
In 2007, in its third periodic report to the Human Rights Committee, Switzerland stated:
In a 2002 decision the Federal Court found that the principle of non bis in idem derives not only from the Federal Constitution and from article 4 of the seventh Optional Protocol to the European Convention [on Human Rights] but also from article 14, paragraph 7, of the International Covenant [on Civil and Political Rights]. In another decision in that same year it stressed that the procedural guarantee contained in article 14, paragraph 4, of the [International] Covenant [on Civil and Political Rights] does not entail an obligation to provide legal protection free of charge. 
Switzerland, Third periodic report to the Human Rights Committee, 17 December 2007, UN Doc. CCPR/C/CHE/3, submitted 12 October 2007, § 238.
[footnotes omitted]
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 75 of the 1977 Additional Protocol I to be part of customary international law. 
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 5.1.
Thailand
In 2004, in its initial report to the Human Rights Committee, Thailand stated: “One shall not be tried or punished again for an offence which the person has already been convicted.” 
Thailand, Initial report of Thailand to the Human Rights Committee, UN Doc. CCPR/C/THA/2004/1, 2 August 2004, § 419.
Uganda
In 2003, in its initial report to the Human Rights Committee, Uganda stated:
410. The principle of non-retroactive jurisdiction is contained in Uganda’s domestic legislation. Under Article 28 (7) of the Constitution “No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence”. The constitution also in a related manner prohibits “double jeopardy”, Article 28 (9) states that “A person who shows that he or she has been tried by a competent court for criminal offence and convicted or acquitted of that offence, shall not again be tried for the offence or for any criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of superior court in the course of appeal or review proceedings relating to the conviction or acquittal”.
411. Furthermore, article 28(10) prohibits trying a person for a criminal offence in which he has previously been pardoned. It states “No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence”. There has not been a case since 1986 where the principle of non-retroactive jurisdiction has been violated. Even if it was, it would have been challenged under the law and under the independent judiciary in the country. 
Uganda, Initial report to the Human Rights Committee, 14 February 2003, UN Doc. CCPR/C/UGA/2003/1, 25 February 2003, §§ 410–411.
United Kingdom of Great Britain and Northern Ireland
In 2004, during a debate in the House of Lords, the UK Attorney General stated:
My Lords, the noble Lord first asked whether soldiers were being put in double jeopardy, because he said that after being acquitted by a court martial they might be subject to a criminal trial. Let me put his mind absolutely at rest. There is no question of that. The doctrine of autre fois acquit, as it is known, applies. If a serviceman is acquitted by a court martial he will not stand trial again before a criminal court. A quite different situation arises where there has not been a trial in the court martial at all. 
United Kingdom, House of Lords, Statement by the Attorney General, Hansard, 25 October 2004, Vol. 665, Debates, col. 1058.
United Kingdom of Great Britain and Northern Ireland
In 2003, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Article 14
Retrial for Serious Offences (Double Jeopardy)
538. The Law Commission reported on “Double Jeopardy and Prosecution Appeals” in 2001. Part 10 of the Criminal Justice Act 2003 reforms the law relating to double jeopardy, by permitting retrials in respect of a number of very serious offences, where new and compelling evidence has come to light. The Government considers that these provisions are consistent with article 14(7) of the Covenant, as interpreted by Human Rights Committee General Comment No. 13 of 13 April 1984. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, § 538.
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International Criminal Tribunal for Rwanda
In the Semanza case before the ICTR in 2000, the Appeals Chamber considered an argument submitted by the accused that the Trial Chamber had wrongly ruled that the proceedings undertaken by the Tribunal did not violate the principle of non bis in idem in the light of the extradition proceedings conducted against him in Cameroon. With regard to that principle, it found:
74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY given by various Trial Chambers of the international criminal Tribunals whereby:
- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;
- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial for the acts covered by the indictment brought against the Accused by the Tribunal and at the end of which trial a final judgement is rendered.
75. The Appellant alleges that the proceedings before the Tribunal in The Prosecutor v. Laurent Semanza violate the principle of non bis in idem because proceedings had already been brought against him in Cameroon. The core question for the Appeals Chamber is whether in Cameroon the Appellant was the subject of a trial in the sense of Article 9 (2) of the [1994 ICTR] Statute, that is, whether the trial was for acts constituting serious violations of international humanitarian law and whether a final judgement on those offences was delivered.
76. The Appeals Chamber finds that proceedings were raised against the Appellant in Cameroon following the extradition request from the Parquet général (Public Prosecutor Office) of the Republic of Rwanda. However, in view of the extradition law of Cameroon and the Decision by the Yaoundé Court of Appeal on the issue, it is apparent that those proceedings concerned only admissibility of the extradition request from the Rwandan Government and was in no wise a trial for acts constituting serious violations of international humanitarian law. It is therefore apparent that the Yaoundé Court of Appeal did not deliver any final judgement on the charges brought against the Appellant before this Tribunal.
77. In view of these findings, the Appeals Chamber concludes that the action against the Appellant in Cameroon did not constitute a trial in the sense of Article 9 (2) of the Statute. Therefore, the proceedings before the Tribunal do not violate the principle of non bis in idem. 
ICTR, Semanza case, Appeals Chamber Decision, 31 May 2000, §§ 74–77.
International Criminal Tribunal for Rwanda
In its judgment in the Nzabirinda case in 2007, the ICTR Trial Chamber stated:
45. The Chamber recalls that Article 9(1) of the [1994 ICTR] Statute prohibits against a second trial of an accused for the same serious violation of international humanitarian law. The non bis in idem principle applies to persons who have been tried by the ICTR (Article 9(1)), or to persons who have been tried before a national court (Article 9(2)) for acts constituting serious violations of international humanitarian law.
46. As the Appeals Chamber [in the Semanza case] observed, “the term ‘tried’ implies that proceedings in the national court constituted a trial for the acts covered by the indictment brought against the Accused by the Tribunal and at the end of which trial a final judgement is rendered.” 
ICTR, Nzabirinda case, Judgment, 23 February 2007, §§ 45–46.
Human Rights Committee
In its admissibility decision in A.P. v. Italy in 1987, the Human Rights Committee stated that Article 14(7) of the 1966 International Covenant on Civil and Political Rights did not prohibit double jeopardy for the same offence when the prosecutions were initiated in different States. 
Human Rights Committee, A.P. v. Italy, Admissibility Decision, 2 November 1987, § 7.3.
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee stated:
3. … Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted …
54. Article 14, paragraph 7 of the Covenant, providing that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country, embodies the principle of ne bis in idem. This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal. Article 14, paragraph 7 does not prohibit retrial of a person convicted in absentia who requests it, but applies to the second conviction.
55. Repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience.
56. The prohibition of article 14, paragraph 7, is not at issue if a higher court quashes a conviction and orders a retrial. Furthermore, it does not prohibit the resumption of a criminal trial justified by exceptional circumstances, such as the discovery of evidence which was not available or known at the time of the acquittal.
57. This guarantee applies to criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14 of the Covenant. Furthermore, it does not guarantee ne bis in idem with respect to the national jurisdictions of two or more States.116 This understanding should not, however, undermine efforts by States to prevent retrial for the same criminal offence through international conventions.  
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 3 and 54–57.
Inter-American Commission on Human Rights
In its report in a case concerning Peru in 1995, the Inter-American Commission on Human Rights stated that the underlying elements of the principle of ne bis in idem are that: the accused has been acquitted; the judgment in question is final; and the new proceedings are based on the same cause. 
Inter-American Commission on Human Rights, Case 11.006 (Peru), Report, 7 February 1995, pp. 298–302.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
The conviction must be pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include … no punishment more than once for the same act or the same charge. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(i).
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including: “No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9(f), IRRC, No. 282, 1991, p. 334.