摘要：One of the concerns expressed about the implementation of complementarity under the ICC statute is whether a state will have the prerogative of deciding which crimes to charge without running the risk that the ICC will minimize the State’s choice by prosecuting the same acts under the ICC statute. The primary question is what happens if a State chooses to prosecute for an “ordinary” crime, such as murder or rape, rather than for an “international” crime, such as genocide, crimes against humanity, or war crimes? Suppose, for example, that a State is prosecuting or has prosecuted an accused for multiple murders for a particular incident that also arguably was part of a widespread or systematic attack against a civilian population. Is the case inadmissible in the ICC or could there be a prosecution in the ICC for crimes against humanity of murder? Assuming that jurisdictional requirements are met, the issue becomes one of admissibility of the matter and, in the case of completed cases, also an issue of ne bis in idem, or double jeopardy. A case is not admissible in the ICC if a State with primary jurisdiction is willing and able to proceed with the investigation and prosecution or if the accused was already tried for the conduct and a further prosecution is now barred under the ne bis in idem provision. There are exceptions, however, to the willing and able provision and to the ne bis in idem bar if the State prosecution is a “sham” trial, shielding the accused from responsibility, or was an improper proceeding, lacking in independence or impartiality and inconsistent with bringing the accused to justice. While the issue of “ordinary” crimes occurs with both the “willing and able” standard and the ne bis in idem standard, the focus of this paper will be on the situation in which a State has already prosecuted an accused for a crime, resulting in a conviction, an acquittal, or another final determination of the case. The prior adjudication triggers the principle of ne bis in idem, or double jeopardy. I will develop the point that the design of the ne bis in idem principle in the ICC statute is highly protective of State prosecutions and is expressly different from the statutes for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) that permit greater control by the international
