Cumulative convictions

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

537. In relation to crimes under different statutory provisions, as the Trial Chamber recalled, cumulative convictions for the same conduct are permissible if each statutory provision involved has a materially distinct element not contained in the other.[1] Further, the Appeals Chamber notes that the Trial Chamber correctly held that conspiracy to commit genocide and genocide involve different underlying acts or omissions and a materially distinct actus reus.[2]

538. In this case, the Trial Chamber reasoned that – as Popović’s and Beara’s participation in the JCE to Murder with genocidal intent was the basis of the convictions for genocide as well as for inferring an agreement to commit genocide – “entering a conviction for the substantive offence of genocide renders redundant a conviction for conspiracy”.[3] The Trial Chamber also concluded that “the full criminality of the Accused is accounted for by a conviction for genocide”.[4] The Appeals Chamber, however, recalls “that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[5] As conspiracy to commit genocide and genocide are distinct crimes, it was necessary to enter convictions against Popović and Beara for conspiracy to commit genocide in order to reflect their full culpability.[6] […]

[1]           Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 259 & fn. 630. See [Popović et al.] Trial Judgement, para. 2111 & fns 6103-6104.

[2]           [Popović et al.] Trial Judgement, para. 2118 & fns 6115-6116. See Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 260 & fns 632-633.

[3]           Trial Judgement, paras 2124-2126.

[4]           Trial Judgement, para. 2127.

[5]           Gatete Appeal Judgement, para. 261. See Karemera and Ngirumpatse Appeal Judgement, para. 711.

[6]           See Gatete Appeal Judgement, para. 261.

Download full document
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

326. The Trial Chamber defined the crime of devastation not justified by military necessity (Count 4) as follows: (a) destruction or damage of property on a large scale; (b) the destruction or damage was not justified by military necessity; and (c) the perpetrator acted with the intent to destroy or damage the property or in the knowledge that such destruction or damage was a probable consequence of his acts.[1] The Trial Chamber further determined that the elements of the crime of unlawful attacks on civilian objects (Count 5) were: (a) an attack directed against civilian objects; (b) causing damage to the civilian objects; and (c) conducted with the intent of making the civilian objects the object of the attack.[2] Finally, regarding the crime of destruction of, or willful damage to cultural property (Count 6), the Trial Chamber ruled that an act fulfills the elements of this crime if (a) it has caused damage or destruction to property which constitutes the cultural or spiritual heritage of peoples; (b) the damaged or destroyed property was not used for military purposes at the time when the acts of hostility directed against these objects took place; and (c) the act was carried out with the intent to damage or destroy the property in question.[3] The Appeals Chamber notes that the Trial Chamber’s definitions of the elements of the crimes are not contested by either of the Parties.[4]

[…]

328. The Appeals Chamber holds that the Trial Chamber’s application of the Čelebići test is correct. First, the Appeals Chamber finds that the definition of the crime of unlawful attacks on civilian objects (Count 5) contains a materially distinct element not present in either the crime of devastation not justified by military necessity (Count 4) or the crime of destruction of, or willful damage to cultural property (Count 6): the requirement of proof of an attack directed against civilian objects.[5] Although the commission of the latter two crimes may, as suggested by Strugar, imply an attack, this is not a legal element of either crime, which is the proper focus of the Čelebići test on cumulation.[6] Therefore, the Trial Chamber rightly concluded that Count 5 contains a materially distinct element not present in the two other Counts.

329. Second, the Appeals Chamber agrees with the Trial Judgement that Count 6 is the only one to contain the element that the damage or destruction must have been carried out against property which constitutes the cultural or spiritual heritage of peoples. In this regard, the Trial Chamber followed the approach taken in previous cases, that

[t]he offence of destruction or willful damage to institutions dedicated to religion overlaps to a certain extent with the offence of unlawful attacks on civilian objects except that the object of the offence of destruction or willful damage to institutions dedicated to religion is more specific.[7]

Whereas cultural property is certainly civilian in nature,[8] not every civilian object can qualify as cultural property. Therefore, the Trial Chamber rightly concluded that Count 6 contains a materially distinct element not present in the two other Counts.

330. Third, the Trial Chamber stated that the non-justification by military necessity is only an element of the crime of devastation not justified by military necessity (Count 4). The Appeals Chamber agrees that, in line with previous jurisprudence,[9] the element of the non-justification by military necessity present in the crime of devastation not justified by military necessity (Count 4) is indeed not present in the crime of attack against civilian objects (Count 5). The Appeals Chamber also agrees that military necessity is not an element of the crime of destruction of, or damage to cultural property (Count 6). While the latter’s requirement that the cultural property must not have been used for military purposes may be an element indicating that an object does not make an effective contribution to military action in the sense of Article 52(2) of Additional Protocol I, it does not cover the other aspect of military necessity, namely the definite military advantage that must be offered by the destruction of a military objective. Therefore, the Trial Chamber rightly concluded that military necessity was a materially distinct element distinguishing Count 4 from Counts 5 and 6.

331. Finally, the Appeals Chamber agrees with the Trial Chamber’s finding that Count 4 was the only one requiring proof that the devastation must have occurred on a large scale.

332. In light of the above, the Appeals Chamber finds that the Trial Chamber correctly concluded that the offences charged under Counts 4, 5 and 6 each contain materially distinct elements from one another, but erred in failing to enter cumulative convictions for Counts 4, 5 and 6 of the Indictment against Strugar. The Appeals Chamber revises the Trial Judgement accordingly and enters a conviction under Counts 4 and 5 respectively.

[1] Trial Judgement, para. 297.

[2] Ibid., para. 283.

[3] Ibid., para. 312.

[4] Prosecution Appeal Brief, paras 3.12-3.15; Defence Response Brief, para. 65.

[5] The Appeals Chamber notes that the three crimes at stake in the present instance were found to have been permissibly cumulative by the Trial Chamber in Kordić and Čerkez. However, in that case, the Trial Chamber declined to discuss the materially distinct character of these crimes, merely stating, in paragraph 826, that “[t]he issue of improper cumulative conviction does not arise in relation to the remaining Counts […].” This issue was not subject to an appeal by the Parties. Similarly, in the Jokić Sentencing Judgement, when addressing Jokić’s guilty plea to these crimes, among others, the Trial Chamber merely stated that it had “taken into consideration the fact that some of the crimes to which [Jokić] pleaded guilty contain identical legal elements, proof of which depends on the same set of facts, and were committed as part of one and the same attack on the Old Town of Dubrovnik.” See Jokić Sentencing Judgement, para. 54. The Trial Chamber did not specify which of the crimes at stake contained identical legal elements and the issue was not appealed by the Parties. It is therefore the first time that the Appeals Chamber is requested to concretely examine the issue of cumulative convictions with regard to these three specific crimes.

[6] Stakić Appeal Judgement, para. 356.

[7] Brđanin Trial Judgement, para. 596, referring to Kordić and Čerkez Trial Judgement, para. 361. See also Jokić Sentencing Judgement, para. 50, citing Commentary AP I, para. 2067 (stating that the protection granted to cultural property “is additional to the immunity attached to civilian objects”).

[8] See, in relation to educational institutions, Kordić and Čerkez Trial Judgement, para. 361.

[9] See Blaškić Appeal Judgement, para. 109; Kordić and Čerkez Corrigendum to Judgement of 17 December 2004, para. 54.

Download full document
ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

322. Whether the same conduct violates two or more distinct statutory provisions is a question of law.[1] Thus, “the Čelebići test focuses on the legal elements of each crime that may be the subject of a cumulative conviction rather than on the underlying conduct of the accused”.[2]

323. The Appeals Chamber notes that the test applicable to cumulative convictions was correctly set out by the Trial Chamber.[3] However, after finding that the offences at stake each “theoretically” contained materially distinct elements from each other,[4] the Trial Chamber determined that “Counts 4 and 5 really add no materially distinct element, given the particular circumstances in which these offences were committed.”[5] Therefore, the Trial Chamber ruled that the “interests of justice and the purposes of punishment” would be better served by entering a conviction only in respect of Count 6.[6]

324. The Appeals Chamber finds that by subjecting the application of the Čelebići test to the “particular circumstances” of the case, the Trial Chamber exercised discretion and that such exercise of discretion constitutes an error of law. As the Appeals Chamber stated in the Stakić Appeal Judgement,

[w]hen the evidence supports convictions under multiple counts for the same underlying acts, the test as set forth in Čelebići and Kordić does not permit the Trial Chamber discretion to enter one or more of the appropriate convictions, unless the two crimes do not possess materially distinct elements.[7]

[1] Kunarac et al. Appeal Judgement, para. 174. See also Stakić Appeal Judgement, para. 356; Kordić and Čerkez Appeal Judgement, para. 1032.

[2] Stakić Appeal Judgement, para. 356.

[3] Trial Judgement, para. 447.

[4] Ibid., para. 452.

[5] Ibid., para. 454 (emphasis added).

[6] Ibid., para. 454.

[7] Stakić Appeal Judgement, para. 358.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1019. The Appeals Chamber recalls that cumulative convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.[1] The test to be applied with respect to cumulative convictions is to take account of all the legal elements of the offences, including those contained in the provisions’ introductory paragraph.[2]

1020. Moreover, like the ICTY Appeals Chamber,[3] the Appeals Chamber considers that whether the same conduct violates two distinct statutory provisions is a question of law. Accordingly, contrary to the Appellants’ contentions, the legal elements of each offence, not the acts or omissions giving rise to the offence, are to be taken into account in determining whether it is permissible to enter cumulative convictions.

[1] See Ntagerura et al. Appeal Judgement, para. 425, where the Appeals Chamber further stated that an element is materially distinct from another if it requires proof of a fact not required by the other.

[2] Musema Appeal Judgement, para. 363.

[3] Stakić Appeal Judgement, para. 356; Kordić and Čerkez Appeal Judgement, para. 1033.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1026. The Appeals Chamber observes in this respect that in the Kordić and Čerkez Appeal Judgement the ICTY Appeals Chamber found that cumulative convictions are permissible for persecution and other inhumane acts, since each offence has a materially distinct element not contained in the other.[1] Relying on this jurisprudence, the ICTY Appeals Chamber found in the Stakić Appeal Judgement that it was permissible to enter cumulative convictions for extermination and persecution as crimes against humanity on the basis of the same facts. It found that extermination requires proof that the accused caused the death of a large number of people, while persecution requires proof that an act or omission was in fact discriminatory and that the act or omission was committed with specific intent to discriminate.[2] The Appeals Chamber endorses the analysis of the ICTY Appeals Chamber.

1027. According to the foregoing, the Appeals Chamber finds that it is permissible to convict Appellant Barayagwiza cumulatively of both persecution and extermination on the basis of the same facts, Judge Güney dissenting from this finding.

[1] Kordić and Čerkez Appeal Judgement, paras. 1040-1043.

[2] Stakić Appeal Judgement, paras. 364, 367.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1032. […] [T]he Appeals Chamber would recall that the crime of genocide inter alia requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Persecution, like the other acts enumerated in Article 3 of the Statute, must have been committed as part of a widespread and systematic attack on a civilian population. It was therefore open to the Trial Chamber to enter cumulative convictions under Articles 2(3)(a) and 3(h) of the Statute on the basis of the same acts. […]

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1034. The Appeals Chamber recalls that the crime of incitement requires direct and public incitement to commit genocide as a material element and the intent to incite others to commit genocide (itself implying a genocidal intent) as a mental element, which is not required by Article 3(h) of the Statute. As stated supra, persecution as a crime against humanity requires the underlying act to have been committed as part of a widespread and systematic attack on a civilian population, unlike the crime of direct and public incitement to commit genocide.

1035. The argument that the Trial Chamber noted that the material and mental elements of both crimes are the same is manifestly unsubstantiated. The Appeals Chamber notes, first, that in paragraph 1077 of the Judgement the Trial Chamber noted no such thing: it merely stated that, as genocidal intent was established for the communications, “the lesser intent requirement of persecution, the intent to discriminate” had also been met.[1] Secondly, the Appeals Chamber emphasizes that, while the intent to discriminate required by persecution can in practice be considered to be subsumed within genocide, the reverse is not true. The fact remains that the crime of direct and public incitement to commit genocide, like the crime of genocide, requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, which is not required for persecution as a crime against humanity.

[1] Judgement, para. 1077: “Having established that all communications constituting direct and public incitement to genocide were made with genocidal intent, the Chamber notes that the lesser intent requirement of persecution, the intent to discriminate, has been met with regard to these communications”.

Download full document
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 589-591: applying the approach in the Kordić and Čerkez Appeal Judgement to cumulative convictions, the Appeals Chamber found that cumulative convictions on the basis of the same acts are permissible in relation to persecutions under Article 5(h) and torture under Article 5(f) of the Statute.

The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of torture under Article 5 of the Statute: the requirements of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Torture, by contrast, requires proof that the accused caused the severe pain or suffering of an individual, regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory.[1]

[1] Naletilić and Martinović Appeal Judgement, para. 590.

Download full document
ICTY Statute Article 5(h)
Article 5(f)
Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

82. The validity of cumulative convictions in relation to the same conduct, charged as a violation of the laws or customs of war under Article 3 and as a crime against humanity under Article 5 of the Statute, is based on the notion that each crime has a special ingredient not possessed by the other.  Following the reasoning of the Appeals Chamber in the Delalić appeal judgement,[1] the Appeals Chamber notes that, Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5.  On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3.  Thus each Article has an element requiring proof of a fact not required by the other.  As a result, cumulative convictions under both Articles 3 and 5 are permissible.  In such a situation, it is not possible to hold, as is submitted by the cross-appellant, that either offence is a “lesser included offence” of the other.

[1] Also applied in Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, para. 556, pp. 198-199.

Download full document
ICTR Statute Article 3 ICTY Statute Article 3;
Article 5
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

318. A conviction for genocide or complicity in genocide is not impermissibly cumulative with the convictions for crimes against humanity.  A conviction for genocide under Article 2 of the Statute requires proof of an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[1]  That is a wholly different legal and factual showing from the finding of a “widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds” that must support a conviction for crimes against humanity.[2]  Upon this basis, the Appeals Chamber has held that convictions for genocide and convictions for crimes against humanity, based on the same facts, are permissible.[3]

[1] Article 2(2) of the Statute.

[2] Article 3 of the Statute.

[3] Musema Appeal Judgement, para. 370; Krstić Appeal Judgement, paras 219-227; Ntakirutimana Appeal Judgement, para. 542.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

369. […] Simultaneous convictions are permissible for war crimes, crimes against humanity and complicity to commit genocide as each has a materially distinct element. The Appellant’s conviction for complicity to commit genocide was based on his aiding and abetting principal perpetrators who killed Tutsi because of their ethnicity.[1] As noted earlier, the mens rea for complicity in genocide, for those forms of complicity amounting to aiding and abetting, is knowledge of the specific intent of the perpetrator(s).[2] The Appellant’s convictions for crimes against humanity necessitated proof of a widespread or systematic attack against a civilian population, whereas convictions for war crimes require that the offences charged be closely related to the armed conflict. In the Trial Chamber’s opinion, this nexus was clearly established.[3]

See also para. 368.

[1] Trial Judgement [The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003], paras 435-436.

[2] See supra para. 316.

[3] Trial Judgement, paras 516-522.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

616. The Appeals Chamber notes that there is no appellate jurisprudence which addresses the specific cumulative convictions for genocide and murder as a violation of the laws or customs of war. However, the ICTR Appeals Chamber has upheld cumulative convictions for war crimes, as a broad category, and genocide based on the materially distinct elements of genocide and war crimes.[1] Relevantly, genocide requires proof of specific intent while war crimes require proof of the existence of a nexus between the alleged crimes and the armed conflict.[2]

See also para. 617.

[1] See Semanza Appeal Judgement, para. 368; Rutaganda Appeal Judgement, para. 583.

[2] Ibidem.

Download full document
Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

542. […] the Musema Appeals Chamber held that the crime of genocide under Article 2 of the Statute and the crime of extermination under Article 3 of the Statute each contained a materially distinct element not required by the other. The materially distinct element of genocide is the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The materially distinct element of extermination, as a crime against humanity, is the requirement that the crime was committed as part of a widespread or systematic attack against a civilian population.[1] Upon this basis, the Appeals Chamber held that convictions for genocide and extermination as a crime against humanity, based on the same facts, are permissible.[2] This conclusion has recently been confirmed by the ICTY Appeals Chamber in the Krstić case.[3]

[1] Musema Appeal Judgement, para. 366.

[2] Musema Appeal Judgement, para. 370.

[3] Krstić Appeal Judgement, paras. 219-227. 

Download full document
ICTR Statute Article 2
Article 3
Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

542. […] Conviction for murder as a crime against humanity and conviction for extermination as a crime against humanity, based on the same set of facts, however, cannot be cumulative.[1] Murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity; each involves killing within the context of a widespread or systematic attack against the civilian population, and the only element that distinguishes these offences is the requirement of the offence of extermination that the killings occur on a mass scale.

[1] See Kayishema and Ruzindana Trial Judgement, paras. 647-650; Rutaganda Trial Judgement, para. 422; Musema Trial Judgement, para. 957; Semanza Trial Judgement, paras. 500-505.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[4] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[5] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

[1] Ntakirutimana Appeal Judgement, para. 542.

[2] See Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 413: “Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision”. See also Strugar Appeal Judgement, para. 321.

[3] See supra, para. 398.

[4] See supra, para. 416.

[5] See supra, fn. 961.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

415. Similarly, the Appeals Chamber finds that the Trial Chamber did not err in entering convictions for both murder as a crime against humanity (Article 3 of the Statute) and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 4 of the Statute) on the basis of Nsengiyumva’s role in the killings in Gisenyi town. It recalls that a conviction under Article 4 of the Statute has a materially distinct element not required for a conviction under Article 3 of the Statute, namely the existence of a nexus between the alleged crimes and the armed conflict satisfying the requirements of common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II.[1] Likewise, a conviction under Article 3 of the Statute requires proof of a materially distinct element not required under Article 4 of the Statute, namely proof of a widespread or systematic attack against a civilian population.[2]

[1] Ntagerura et al. Appeal Judgement, para. 427; Semanza Appeal Judgement, para. 368; Rutaganda Appeal Judgement, para. 583.

[2] Ntagerura et al. Appeal Judgement, para. 427; Semanza Appeal Judgement, para. 368; Rutaganda Appeal Judgement, para. 583. 

Download full document
Other instruments Common Article 3 of the Geneva Conventions; Article 1 of Additional Protocol II.
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

414. The Appeals Chamber notes that the permissibility of cumulative convictions for the crimes of murder as a crime against humanity and persecution as a crime against humanity has been specifically considered by the Appeals Chamber.[1] The Appeals Chamber has found that the crime of persecution requires a materially distinct element to be proven that is not present as an element in the crime of murder, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.[2] The crime of murder was also held to require proof of a materially distinct element that is not required to be proven in establishing the crime of persecution, namely proof of the death of one or more persons.[3] Therefore, cumulative convictions for murder and persecution as crimes against humanity were found to be permissible.[4] The Appeals Chamber accordingly finds that the Trial Chamber did not err in convicting Nsengiyumva for both murder and persecution as crimes against humanity for the killings in Gisenyi town.[5]

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

735. The Appeals Chamber confirms that cumulative convictions for extermination and persecution as crimes against humanity based on the same set of facts are permissible since each offence has a materially distinct element not contained in the other.[6] Extermination requires proof that the accused caused the death of a large number of people, while persecution necessitates evidence that an act or omission was in fact discriminatory and that the act or omission was perpetrated with the specific intent to discriminate.[7].

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[1] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[2] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

 

 

[1] See supra, para. 416.

[2] See supra, fn. 961.

[1] Ntakirutimana Appeal Judgement, para. 542.

[2] See Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 413: “Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision”. See also Strugar Appeal Judgement, para. 321.

[3] See supra, para. 398.

 

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

428. If […] a decision is reached to cumulatively convict for the same conduct, a Trial Chamber must consider the impact that this will have on sentencing.  In the past, before both this Tribunal and the ICTR, convictions for multiple offences have resulted in the imposition of distinct terms of imprisonment, ordered to run concurrently.[1]

429. It is within a Trial Chamber’s discretion to impose sentences which are either global, concurrent or consecutive, or a mixture of concurrent and consecutive.[2]  In terms of the final sentence imposed, however, the governing criteria is that it should reflect the totality of the culpable conduct (the 'totality’ principle),[3] or generally, that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate.

430. Therefore, the overarching goal in sentencing must be to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.  This can be achieved through either the imposition of one sentence in respect of all offences, or several sentences ordered to run concurrently, consecutively or both.  The decision as to how this should be achieved lies within the discretion of the Trial Chamber.

[1]    Such sentences have been confirmed by the Appeals Chamber in the Tadić Sentencing Appeal Judgement and the Furund‘ija Appeal Judgement.

[2]    See also Rule 101(C) of the Rules: “The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.”

[3]    “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate.’ (footnote omitted) D.A. Thomas, Principles of Sentencing (Heinemann: London, 1980), p 56;  See also R v Bocskei (1970) 54 Cr. App. R. 519, at 521: “[…] when consecutive sentences are imposed the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive.” Section 28(2)(b) Criminal Justice Act 1991 preserves this principle. It applies in all cases where consecutive sentences are imposed, e.g., R v Reeves, 2 Cr. App. R (S) 35, CA; R v Jones, [1996] 1 Ar. App.R (S) 153;  In Canada see e.g., R v M (CA), [1996] 1 SCR 500: “the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence”;  In Australia: Postiglione v R, 145 A.L.R. 408; Mill v R (1988) 166 CLR 59 at 63; R v Michael Arthur Watts, [2000] NSWCCA 167 (the court should look at the individual offences, determine the sentences for each of them and look at the total sentence and structure a sentence reflecting that totality); R v Mathews, Supreme Court of New South Wales, 16 July 1991. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

412. […] [T]his Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other. 

413. Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld.  Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.

See also paragraphs 403-411.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 NTABAKUZE Aloys
(ICTR-98-41A-A)

260. The Appeals Chamber recalls that cumulative convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.[1] An element is materially distinct if it requires proof of a fact that is not required by the other.[2] Applying this well-established principle, the Appeals Chamber recently reiterated that cumulative convictions for extermination and murder as crimes against humanity are not permissible, reasoning that, “whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination”.[3]

261. The Trial Chamber therefore erred in law in entering cumulative convictions for both murder and extermination as crimes against humanity for the killings perpetrated at Nyanza hill and IAMSEA.[4] Since the offence of extermination contains an additional materially distinct element and the conviction under the more specific provision should be retained,[5] the Appeals Chamber concludes that Ntabakuze’s convictions for extermination entered under Count 5 of the Indictment should be upheld, while his convictions for murder as a crime against humanity under Count 4 of the Indictment should be vacated.

[1] See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 413; Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 412; Nahimana et al. Appeal Judgement, para. 1019.

[2] See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 413; Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 412; Ntagerura et al. Appeal Judgement, para. 425.

[3] Bagosora and Nsengiyumva Appeal Judgement, para. 416, referring to Ntakirutimana Appeal Judgement, para. 542. See also Bagosora and Nsengiyumva Appeal Judgement, para. 736.

[4] See Trial Judgement, paras. 2188, 2196, 2258.

[5] See Bagosora and Nsengiyumva Appeal Judgement, para. 416, fn. 961, referring to Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 413. See also Bagosora and Nsengiyumva Appeal Judgement, para. 736.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

1039. It has previously been held in Krnojelac, Vasiljević, and Krstić, that intra-Article 5 convictions under the Statute for persecutions as a crime against humanity with other crimes against humanity found in that Article, are impermissibly cumulative.  In Vasiljević and Krstić, the Appeals Chamber stated that the appellant could not be convicted both for murder and persecutions under Article 5(a) and (h) of the Statute, on the basis of the same acts.[1] It was reasoned that where a charge of persecutions is premised on murder and is proven, the Prosecution need not prove an additional fact in order to secure the conviction for murder because the offence is subsumed by the offence of persecutions, which requires proof of a materially distinct element of discriminatory intent in the commission of the act.[2] Similarly, the Appeals Chamber in these cases, as well as in Krnojelac, held that convictions for persecutions under Article 5(h) and for other inhumane acts under Article 5(i) on the basis of the same conduct are impermissibly cumulative “since the crime of persecution in the form of inhumane acts subsumes the crime against humanity of inhumane acts.”[3] 

1040. The Appeals Chamber considers that cogent reasons warrant a departure from this jurisprudence[4] as an incorrect application of the Čelebići test to intra-Article 5 convictions.  These cases are in direct contradiction to the reasoning and proper application of the test by the Appeals Chambers in Jelisić, Kupreškić, Kunarać, and Musema. As stated above, the Appeals Chamber in Čelebići expressly rejected an approach that takes into account the actual conduct of the accused as determinative of whether multiple convictions for that conduct are permissible.  Rather, what is required is an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted. It must be considered whether each offence charged has a materially distinct element not contained in the other; that is, whether each offence has an element that requires proof of a fact not required by the other offence.  

1041. The first pair of intra-Article 5 cumulative convictions at issue in this case is persecutions as a crime against humanity under Article 5(h) of the Statute and murder as a crime against humanity under Article 5(a) of the Statute. The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of murder under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Murder, by contrast, requires proof that the accused caused the death of one or more persons, regardless of whether the act or omission causing the death discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts under Article 5 of the Statute are permissible in relation to these crimes.

1042. The second pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and other inhumane acts as a crime against humanity under Article 5(i) of the Statute.  The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of other inhumane acts under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Other inhumane acts, by contrast, require proof that the accused caused serious bodily or mental harm to the victim(s), regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.

1043. Finally, the third pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and imprisonment as a crime against humanity under Article 5(e) of the Statute.  The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of imprisonment under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate.  On the other hand, the offence of imprisonment requires proof of the deprivation of the liberty of an individual without due process of law, regardless of whether the deprivation of liberty discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions.  Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.  

See also Joint Dissenting Opinion on Cumulative Convictions of Judges Schomburg and Güney.

[1] Vasiljević Appeal Judgement, para. 146; Krstić Appeal Judgement, para. 231.

[2] Krstić Appeal Judgement, para. 231-232.

[3] Krnojelac Appeal Judgement, para. 188; Vasiljević Appeal Judgement, para. 146; Krstić Appeal Judgement, para. 231.

[4] Aleksovski Appeal Judgement, paras 107, 109.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

39. […] [T]he Appeals Chamber recalls the two-pronged test articulated in the Čelebići Appeal Judgement[1] and emphasizes that the focus of the analysis is to be placed on the legal elements of each crime, rather than on the underlying conduct of the accused.[2] With respect to the offence of unlawful attacks against civilians, the Appeals Chamber recalls that it requires proof of death or serious injury to body or health, which, as explained in paragraph 33 above, is not per se an element of the crime of terror. Conversely, the offence of terror requires proof of an intent to spread terror among the civilian population which is not an element of the crime of unlawful attacks against civilians. Therefore, the Appeals Chamber finds that each offence has an element requiring proof of a fact not required by the other, thus allowing cumulative convictions. The Trial Chamber’s conclusion to the contrary was, accordingly, erroneous.

[1] Čelebići Appeal Judgement, paras 412-413.

[2] Stakić Appeal Judgement, para. 356.

Download full document
ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.

[1] Kordić and Čerkez Appeal Judgement, paras 1040-1043.

[2] See Krstić Appeal Judgement, paras 230-233; Vasiljević Appeal Judgement, paras 144-146; Krnojelac Appeal Judgement, para. 188.

[3] Kordić and Čerkez Appeal Judgement, para. 1040.

[4] See Nahimana et al. Appeal Judgement, paras 1026-1027; Naletilić and Martinović Appeal Judgement, paras 587-591; Stakić Appeal Judgement, paras 355-367.

[5] Trial Judgement, para. 1130.

[6] See Nahimana et al. Appeal Judgement, Partly Dissenting Opinion of Judge Güney, para. 5.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

361.   The Appeals Chamber in Čelebići then stated:

Having considered the different approaches expressed on this issue both within this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other.

Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.[1]

Applying this test, the Appeals Chamber in Celebići found that as between the Article 2 offences and Article 3 (common Article 3) offences of ICTY Statute at issue in the case,[2]  the multiple convictions entered by the Trial Chamber could not be affirmed, because while the Article 2 offences contained a materially distinct element not contained in Article 3 (common Article 3) offences, the reverse was not the case.  Following the approach set out in the second paragraph of the cited statement from Čelebići, supra, convictions under Article 2 were upheld, but those entered under Article 3 (common Article 3) were quashed by the Appeals Chamber.

362.   In the Jelisić Appeal Judgement, ICTY Appeals Chamber adopted the reasoning it had followed in the Čelebići case, and held that the multiple convictions entered under Article 3 and Article 5 of ICTY Statute are permissible because each Article contained a distinct element requiring proof of a fact not required by the other Article.[3] 

363.   In the view of the Appeals Chamber, the above test concerning multiple convictions reflects general, objective criteria enabling a Chamber to determine when it may enter or affirm multiple convictions based on the same acts.  The Appeals Chamber confirms that this is the test to be applied with respect to multiple convictions arising under ICTR Statute.  The Appeals Chamber further endorses the approach of the Čelebići Appeal Judgement, with regard to the elements of the offences to be taken into consideration in the application of this test.[4]  In applying this test, all the legal elements of the offences, including those contained in the provisions’ introductory paragraph, must be taken into account.

[1] Čelebići Appeal Judgement, paras. 412 and 413.

[2] The pairs of crimes at issue in the case under ICTY Statute were:  (1) willful killings under Article 2 and murders under Article 3 (common Article 3);  (2) willfully causing great suffering or serious injury to body or health under Article 2 and cruel treatment under Article 3 (common Article 3);  (3) torture under Article 2 and torture under Article 3 (common Article 3); (4) inhuman treatment under Article 2 and cruel treatment under Article 3 (common Article 3).  See Čelebići Appeal Judgement, para. 414.

[3] The Chamber stated: “… Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5.  On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3.  Thus each Article has an element requiring proof of a fact not required by the other. As a result, cumulative convictions under both Article 3 and 5 are permissible.”  Jelisić Appeal Judgement, para. 82.

[4] This refers to the approach of the majority of the Appeals Chamber in Čelebići.

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

364.   In the case at bar, the Trial Chamber found Musema guilty of genocide (Count 1) and of extermination as a crime against humanity (Count 5) on the basis of the same set of facts.  Musema requests the reversal of the conviction for extermination.  The issue is whether such double conviction is permissible.

365.   Applying the provisions of the test articulated above, the first issue is whether a given statutory provision has a materially distinct element not contained in the other provision, an element being regarded as materially distinct from another if it requires proof of a fact not required by the other.

366.   Genocide requires proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group; this is not required by extermination as a crime against humanity.  Extermination as a crime against humanity requires proof that the crime was committed as a part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide.

367.   As a result, the applicable test with respect to double convictions for genocide and extermination as a crime against humanity is satisfied; these convictions are permissible.  Accordingly, Musema’s ground of appeal on this point is dismissed.

Download full document
Notion(s) Filing Case
Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

168. The Appeals Chamber accepts the approach articulated in the Čelebići Appeal Judgement, an approach heavily indebted to the Blockburger decision of the Supreme Court of the United States.[1]  The Appeals Chamber held that: [2]

fairness to the accused and the consideration that only distinct crimes justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other. 

Where this test is not met, the Chamber must decide on the basis of the principle that the conviction under the more specific provision should be upheld.

169. Care, however, is needed in applying the Čelebići test for, as Judges Hunt and Bennouna observed in their separate and dissenting opinion in the same case, cumulative convictions create “a very real risk of … prejudice” to the accused.[3] At the very least, such persons suffer the stigma inherent in being convicted of an additional crime for the same conduct.   In a more tangible sense, there may be such consequences as losing eligibility for early release under the law of the state enforcing the sentence.[4] Nor is such prejudice cured, as the U.S. Supreme Court warned in Rutledge v U.S.,[5] by the fact that the second conviction’s concomitant sentence is served concurrently.[6]  On the other hand, multiple convictions serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct.[7]

170. Typically, the issue of multiple convictions or cumulative convictions arises in legal systems with a hierarchy of offences in which the more serious offences within a category require proof of an additional element or even require a specific mens rea. It is, however, an established principle of both the civil and common law that punishment should not be imposed for both a greater offence and a lesser included offence. Instead, the more serious crime subsumes the less serious (lex consumens derogat legi consumptae). The rationale here, of course, is that the greater and the lesser included offence constitute the same core offence, without sufficient distinction between them, even when the same act or transaction violates two distinct statutory provisions.[8]  Indeed, it is not possible to commit the more serious offence without also committing the lesser included offence.[9]

171. In national laws, this principle is easier to apply because the relative gravity of a crime can normally be ascertained by the penalty imposed by the law. The Statute, however, does not provide a scale of penalties for the various crimes it proscribes.  Nor does the Statute give other indications as to the relative gravity of the crimes.  Indeed, the Tribunal has explicitly rejected a hierarchy of crimes, concluding instead that crimes against humanity are not inherently graver than war crimes.[10] 

172. The Čelebići/Blockburger test serves to identify distinct offences within this constellation of statutory provisions.[11] While subscribing to this test, the Appeals Chamber is aware that it is deceptively simple.  In practice, it is difficult to apply in a way that is conceptually coherent and promotes the interests of justice.

173. For this reason, the Appeals Chamber will scrutinise with the greatest caution multiple or cumulative convictions. In so doing, it will be guided by the considerations of justice for the accused: the Appeals Chamber will permit multiple convictions only in cases where the same act or transaction clearly violates two distinct provisions of the Statute and where each statutory provision requires proof of an additional fact which the other does not.

174. The Appeals Chamber wishes to emphasise that whether the same conduct violates two distinct statutory provisions is a question of law. Nevertheless, the Chamber must take into account the entire situation so as to avoid a mechanical or blind application of its guiding principles.

[1]   Blockburger v United States, 284 U.S. 299, 304 (1931) (“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”).

[2]   Čelebići Appeal Judgement, paras 412-13.  Hereinafter referred to as the Čelebići test.

[3]   Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, Čelebići Appeal Judgement, para 23.

[4]   Ibid.

[5]   Rutledge v United States, 517 U.S. 292, 116 S. Ct. 1241, 1248 (1996).

[6]   Ibid., citing Ball v United States, 470 U.S. 856, 865 (1985).

[7]   See, e.g., Partial Dissenting Opinion of Judge Shahabuddeen, Jelisić Appeal Judgement, para 34: “To record the full criminality of his conduct, it may be necessary to convict of all the crimes, overlapping in convictions being adjusted through penalty”.

[8]   See supra n 226.

[9]   Black’s Law Dictionary, s.v. lesser included offense: “One which is composed of some, but not all elements of a greater offense and which does not have any element not included in greater offense so that it is impossible to commit greater offense without necessarily committing the lesser offense.” (6th ed., St. Paul, Minn. 1990)

[10]  Tadić Sentencing Appeal Judgement, para 69: “After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime.  The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case”.

[11]  With regard to Articles 3 and 5 of the Statute, the Appeals Chamber held in the Jelisić Appeal Judgement that, as each has an element of proof of fact not required by the other, neither was a lesser included offence of the other (para 82). 

Download full document
Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

259. The Appeals Chamber observes that this is the first time that it has been called upon to adjudicate the issue of whether an accused can be convicted both of genocide and conspiracy to commit genocide. The Appeals Chamber recalls that convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.

260. The Appeals Chamber recalls that genocide and conspiracy to commit genocide are distinct crimes under Articles 2(3)(a) and 2(3)(b) of the Statute. As the Trial Chamber correctly observed, the crime of genocide has a materially distinct actus reus from the crime of conspiracy to commit genocide and both crimes are based on different underlying conduct. The crime of genocide requires the commission of one of the enumerated acts in Article 2(2) of the Statute, while the crime of conspiracy to commit genocide requires the act of entering into an agreement to commit genocide.The Appeals Chamber finds that the Trial Chamber did not err in concluding that the crimes are distinct and that the conduct underlying each crime is not the same.

261. […T]he Appeals Chamber considers that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person. Accordingly, the Appeals Chamber finds, Judge Agius dissenting, that by convicting Gatete only of genocide while he was also found criminally responsible for conspiracy to commit genocide, the Trial Chamber failed to hold him responsible for the totality of his criminal conduct, which included entering into the unlawful agreement to commit genocide.

262. […] The Appeals Chamber recalls that criminalising conspiracy to commit genocide, as an inchoate crime, aims to prevent the commission of genocide. However, the Appeals Chamber considers that another reason for criminalising conspiracy to commit genocide is to punish the collaboration of a group of individuals resolved to commit genocide. The danger represented by such collaboration itself justifies the incrimination of acts of conspiracy, irrespective of whether the substantive crime of genocide has been committed. Thus, the Appeals Chamber finds, Judge Agius dissenting, that the inchoate nature of the crime of conspiracy does not obviate the need to enter a conviction for this crime when genocide has also been committed by the accused, since the crime of genocide does not punish the agreement to commit genocide.

263. Finally, the Trial Chamber inferred from the evidence establishing that Gatete participated in a joint criminal enterprise that he also entered into an agreement to commit genocide. On this basis, it found that entering a conviction for the crime of genocide would render a conviction for conspiracy redundant. The Appeals Chamber recalls that conspiracy to commit genocide is a crime under the Statute, while joint criminal enterprise is a form of criminal responsibility. The Appeals Chamber considers, Judge Agius dissenting, that a comparison of the evidence underpinning these two elements is irrelevant when deciding whether convictions can be entered for both crimes of genocide and conspiracy to commit genocide, as the issue of cumulative convictions arises only between crimes.

[1] The Appeals Chamber notes that trial chambers have dealt with this issue in various ways, from considering that the test on permissibility of cumulative convictions was applicable to finding that it did not apply and from entering convictions on both crimes to entering a conviction on only one. See Nzabonimana Trial Judgement, fn. 2184 (where the trial chamber considered that it did not need to address the issue of whether cumulative convictions may be entered for conspiracy to commit genocide and genocide because the conduct that served as the basis for conspiracy to commit genocide was different from the conduct that served as the basis for genocide); Karemera and Ngirumpatse Trial Judgement, para. 1713 (where the trial chamber concurred with the Musema, Popović et al., and Gatete trial chambers and decided not to enter a conviction of conspiracy considering the conviction of genocide); Nyiramasuhuko et al. Trial Judgement, paras. 5678, 5970, fn. 14634 (Nyiramasuhuko was convicted of conspiracy to commit genocide and genocide; the trial chamber considered that it did not need to address whether convictions may be entered simultaneously for conspiracy to commit genocide and for genocide because the conduct that served as the basis for conspiracy to commit genocide is different from that forming the basis for genocide); Nahimana et al. Trial Judgement, paras. 1043, 1090 (where the trial chamber found that the test on cumulative convictions applied and that cumulative convictions were permissible as both crimes comprise materially distinct elements); Kajelijeli Trial Judgement, paras. 787-793, 798 (where the trial chamber noted the discrepancies between Niyitegeka and Musema Trial Judgements but did not feel called upon to express a preference as Kajelijeli was found not guilty of conspiracy to commit genocide); Niyitegeka Trial Judgement, paras. 420, 429, 480 (where the accused was convicted of both crimes); Musema Trial Judgement, paras. 198, 940, 941, p. 276 (where the trial chamber stated “that [it] has adopted the definition of conspiracy most favourable to Musema, whereby an accused cannot be convicted of both genocide and conspiracy to commit genocide on the basis of the same acts” without finding the accused guilty of the crime of conspiracy to commit genocide in the absence of any evidence presented by the Prosecution); Kambanda Trial Judgement, paras. 3, 39, 40 (where the accused pleaded guilty to both conspiracy to commit genocide and genocide).

[2] Čelebići Appeal Judgement, para. 412. See also Ntabakuze Appeal Judgement, para. 260; Bagosora and Nsengiyumva Appeal Judgement, para. 413; Nahimana et al. Appeal Judgement, para. 1019; Ntakirutimana Appeal Judgement, para. 542.

[3] See Trial Judgement, para. 654.

[4] Nahimana et al. Appeal Judgement, para. 492.

[5] Seromba Appeal Judgement, para. 218; Nahimana et al. Appeal Judgement, para. 894; Ntagerura et al. Appeal Judgement, para. 92.

[6] Cf. Strugar Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 358.

[7] See Ad Hoc Committee on Genocide, Note by the Secretariat, Economic and Social Council, E/AC.25/3, 2 April 1948, p. 8.

[8] A reading of the travaux préparatoires of the Genocide Convention [Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, entered into force on 12 January 1951 (“Genocide Convention”)] shows that the Committee considered that conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide and of the fact that in practice genocide is a collective crime, presupposing the collaboration of a greater or smaller number of persons. See Ad Hoc Committee on Genocide, Report of the Committee and Draft Convention Drawn up by the Committee, Economic and Social Council, E/794, 24 May 1948, p. 20.

[9] Trial Judgement, para. 661.

[10] See Article 2(3)(b) of the Statute [Statute of the International Criminal Tribunal for Rwanda]; Nahimana et al. Appeal Judgement, para. 896.

[11] Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. See, e.g., Nahimana et al. Appeal Judgement, para. 478; Ntagerura et al. Appeal Judgement, para. 24; Ntakirutimana Appeal Judgement, para. 462.

[12] However, this factor may be relevant when it comes to sentencing as “a penalty must reflect the totality of the crimes committed by a person and be proportionate to both the seriousness of the crimes committed and the degree of participation of the person convicted”. See Ntakirutimana Appeal Judgment, para. 562; Rutaganda Appeal Judgement, para. 591.

Download full document
ICTR Statute Article 2(3)(c);
Article 2(3)(b)
ICTY Statute Article 4(3)(a);
Article 4(3)(b)