146 X. DECLARATION OF JUDGE NIETO-NAVIA 1. I am appending a declaration because it is, in my view, necessary to say a few words about Article 25 of the Statute which provides the Prosecution or a convicted person the right to appeal on an error on a question of law invalidating the decision or an error of fact occasioning a miscarriage of justice. It would appear that the Prosecution’s appeals against the acquittals on Counts 8, 9, 12, 15, 21 and 32, constituting ground 1 of the cross-appeal, and on Counts 29, 30 and 31, constituting the second ground of crossappeal, fall within the ambit of Article 25. The civil law principle of non bis in idem, according to Black’s Law Dictionary, means that the accused “shall not be twice tried for the same crime”. The corresponding common law principle of double jeopardy entitles the accused “not [to] be twice ‘put in jeopardy’ for the same offence”. On the face of it, it would appear that Prosecution appeals against acquittals, though permissible under Article 25, might be in contravention of the legal tenet of non bis in idem. My concern is two-fold: (1) is non bis in idem a general principle of law; and (2) if so, is Article 25 consistent with the principle? 2. It is notable that the International Tribunal’s own Statute recognises the maxim of non bis in idem. Article 10 protects a person tried by the Tribunal from subsequent prosecution by a national court. The corollary is also true: a person tried by a national court may not be tried subsequently by the International Tribunal unless the original charge was classified as a common crime, or the national court proceedings did not conform to the fundamental principles of criminal law (that is, the court proceedings were not independent and impartial, or were conducted to shield the accused from international criminal responsibility, or the charge was not prosecuted diligently). 3. Can a general principle of law be discerned from the practice of domestic courts? In the United States, the Supreme Court has interpreted the double jeopardy clause of the Fifth Amendment1 to mean that the Prosecution cannot appeal against a verdict, whether on an error on a question of law or fact. 2 This finality accorded to criminal judgements is intended to protect the acquitted or convicted person against “prosecution oppression”. Double jeopardy does not bar the convicted person from appealing because he/she chooses to put himself/herself at risk once more. 1 The Fifth Amendment of the U.S. Constitution reads: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. 2 See United States v. DiFrancesco, 449 U.S. 117 (1980); Kepner v. United States, 195 U.S. 100 (1904); Sanabria v. United States, 437 U.S. 54 (1978); Green v. United States, 355 U.S. 184 (1957).