CUMULATIVE CONVICTIONS IN INTERNATIONAL CRIMINAL LAW: RECONSIDERATION OF A SEEMINGLY SETTLED ISSUE

SUFFOLK TRANSNATIONAL LAW REVIEW VOLUME 34, BOOK 2

CUMULATIVE CONVICTIONS IN

INTERNATIONAL CRIMINAL LAW: RECONSIDERATION OF A SEEMINGLY

SETTLED ISSUE

Ildikó Erdei*

Despite the jurisprudential developments in international criminal law in the last 20 years, the legal permissibility of

cumulative convictions for international crimes remains in flux. Three of the core crimes, namely war crimes, crimes against humanity, and genocide, have overlapping legal elements. A single rape can simultaneously be a war crime, crime against humanity, and

genocide if it is committed with genocidal intent against a protected person in an armed conflict where there is a widespread or systematic attack directed against a civilian population. Whether an accused can thereby be convicted of three independent crimes is

debatable.

When international criminal law was in its infancy, the potential of cumulative convictions for the same act was not a significant

concern. The Nuremberg and Tokyo Tribunals were unique in an otherwise sovereignty based system that deemed penal law to be within state jurisdiction. No hierarchy of offenses was explicitly acknowledged, nor was there any method for addressing how these

crimes related to one another.1 As Professor William Schabas notes, war crimes, crimes against humanity, and genocide “are derived from different sources, both customary and conventional, and when they were first defined they were never intended to be part of a

coherent and comprehensive codification of serious violations of international humanitarian law.”2 If these crimes were prosecuted

* B.A. (Hons), J.D. (Toronto), LL.M. Candidate (Irish Centre for Human Rights, National University of Ireland). I would like to thank Professors William A. Schabas, Darryl Robinson and Shane Darcy, as well as Melanie Tharamangalam, for their helpful comments on earlier drafts of this article. Any errors or omissions are, of course, my own.

1. See Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 MELB. J. INT‟L L. 1, 5 (2002) (explaining lack of hierarchy for offenses exist in ICTY and ICTR tribunals).

2. WILLIAM A. SCHABAS, THE U.N. INTERNATIONAL CRIMINAL TRIBUNALS: THE FORMER YUGOSLAVIA, RWANDA AND SIERRA LEONE 434 (2006).


domestically, concerns relating to overlap, such as double jeopardy, were addressed within the state constitutional and criminal law framework. With the introduction of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda

(Yugoslav Tribunal and Rwanda Tribunal, respectively) and the International Criminal Court, a need has developed for a coherent and principled approach to cumulative convictions.

The purpose of this paper is to argue that the current test for

cumulative convictions, the Čelebići test, is not sufficiently nuanced to account for the unique nature of international crimes or the inherent hierarchy which exists between these crimes. Part I of this

paper seeks to provide a framework for analysis and understanding of the implications of cumulative convictions for the accused, particularly with respect to ne bis in idem or double jeopardy. Part II of this paper looks specifically at how the ad hoc Tribunals have

dealt with cumulative convictions. The Čelebići test and its interpretation in cases of inter-article and intra-article cumulative convictions are issues considered in detail. Finally, Part III of this paper argues that a hierarchy of offenses exists, and that the future

approach to cumulative convictions should incorporate this hierarchy. A modified version of the Čelebići test that prohibits consideration of contextual elements and incorporates the hierarchy of offenses is then proposed.

I. CUMULATIVE CONVICTIONS

Cumulative convictions occur when an accused is convicted of multiple offenses under different legal headings for the same

conduct.3 Such convictions are distinguishable from cumulative charges, which involve drafting an indictment in a manner that alleges various offenses for the same conduct. Cumulative charges may result in multiple convictions or a single conviction, but are not

determinative.

A thorough comparative analysis of cumulative convictions at the domestic level and how different jurisdictions have dealt with

3. See Bogdan, supra note 1, at 2; see also OLAOLUWA OLUSANYA, DOUBLE

JEOPARDY WITHOUT PARAMETERS: RE-CHARACTERIZATION IN INTERNATIONAL

CRIMINAL LAW 6 (2004); Nisha Valabhji, Cumulative Convictions Based on the Same Acts Under the Statute of the I.C.T.Y., 10 TUL. J. INT‟L & COMP. L. 185, 185 (2002); Hong S. Wills, Cumulative Convictions and the Double Jeopardy Rule: Pursuing Justice at the ICTY and the ICTR, 17(1) EMORY INT‟L L. REV. 341, 344 (2003).


them is beyond the scope of this paper. Suffice it to say, there is no universally accepted approach to the issue.4 At the international level, three categories of cumulative convictions are of concern:

1. Convictions for the same substantive crime as different types of core

crimes, i.e., torture as a crime against humanity, torture as a war crime.

2. Convictions for different substantive crimes as the same type of core

crime, i.e., rape as a crime against humanity, torture as a crime against

humanity.

3. Convictions for different substantive crimes as different types of core

crimes, i.e., rape as a crime against humanity, torture as a war crime.

Rape and torture are simple examples of potential cumulative convictions because rape has been found to constitute torture.5 Many

types of cumulative convictions have been addressed by the ad hoc Tribunals, but with differing results. For convenience, cumulative convictions between the categories of core crimes, which are consistently in separate articles in the Statutes of the ad hoc

Tribunals and the International Criminal Court, are herein referred to as “inter-article cumulative convictions.” Cumulative convictions which are within the same category of core crimes are herein referred to as “intra-article cumulative convictions.” Detailed examples are

offered below, but first a consideration of the implications of cumulative convictions is warranted.

A. Ne bis in idem or Double Jeopardy

The principle of ne bis in idem is referred to in common law

jurisdictions as the prohibition on double jeopardy.6 Double jeopardy is thought of as applying to repeated trials within the same jurisdiction, whereas ne bis in idem is broader, protecting “the person from repeated prosecution or punishment for the same conduct,

4. For a discussion of the approaches of different legal traditions, see Susanne Walther, Cumulation of Offences, in 1 THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT: A COMMENTARY 1 (Antonio Cassese et al. eds., 2002); see also Prosecutor v. Kupreskic, Judgment, ¶ 660, Case No. IT-95-16-T (Int‟l Crim. Trib. for the former Yugoslavia Jan. 14, 2000); Prosecutor v. Semanza, Judgment and Sentence, ¶ 4, Case No. ICTR-97-20-T (Int‟l Crim. Trib. for Rwanda May 15, 2003) (Dolenc, J., dissenting).

5. Prosecutor v. Kvocka, Judgment, ¶¶ 149-51, Case No. IT-98-30/1-T (Int‟l Crim. Trib. for the former Yugoslavia June 12, 2002). Rapes committed with the intent to cause harm to an onlooker may constitute torture. Id.

6. These terms are used interchangeably throughout.


irrespective of the prosecuting system.”7 The Statutes of the ad hoc Tribunals and the Rome Statute of the International Criminal Court each protect an accused from ne bis in idem but with provisions drafted slightly differently. Article 9 of the Rwanda Statute and

Article 10 of the Yugoslav Statute are substantially the same. Both prohibit retrial for “acts” already tried by the Tribunal. The two also prohibit retrial by the Tribunals of acts already tried by domestic courts, with certain exceptions: if the acts were tried as “ordinary

crimes” or if “the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.”8 Finally, the articles oblige the Tribunals to “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.”9

It is unclear whether these articles protect the accused from

retrial on the same facts or retrial for the same legal characterization of these facts.10 The articles speak of retrial for the same acts, which suggests that it is the conduct and not its legal characterization that cannot be retried. Thus, an accused who was acquitted by the

Tribunal of genocide would have a defense of autrefois acquit if prosecuted domestically on the same facts for murder. As mentioned, the articles permit an accused who has been tried in a domestic court to be retried if the acts were characterized as

“ordinary crimes.” This suggests that ne bis in idem protects against re-trial of the legal characterization of the acts under scrutiny. Despite this, some early deferral cases at the Rwanda Tribunal support the view that ne bis in idem protects retrial of conduct and

not legal characterization. The Tribunal transferred cases being

7. Bogdan, supra note 1, at 4 n.17 (citing M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT‟L L. 235, 288 (1993)); see also Prosecutor v. Tadić, Declaration of Judge Neito-Navia, ¶ 1, Case No. IT-94-1-A (Int‟l Crim. Trib. for the former Yugoslavia July 15, 1999).

8. S.C. Res. 955, Annex art. 9, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter Rwanda Statute] (adopting the statute for the International Tribunal for Rwanda); Statute of the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827 art. 10, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter Yugoslav Statute].

9. Rwanda Statute, supra note 8, art. 9(3); Yugoslav Statute, supra note 8, art. 10(3).

10. Michael Bohlander, Ne Bis in Idem, in 3 INTERNATIONAL CRIMINAL LAW: INTERNATIONAL ENFORCEMENT 541, 549 (M. Cherif Bassiouni ed., 3d ed. 2008).


domestically tried for war crimes and murder, but not for genocide or crimes against humanity, because of a concern that if “the national conviction (or acquittal) turned on one of the categories under the Tribunal statute, it would preclude retrial before the Tribunal under

another characterization.”11 Further, the obligation to consider previously imposed penalties indicates that the articles also prohibit double punishment. This is relevant because, as this paper will discuss, the ad hoc Tribunals have glazed over conceptual difficulties

raised by cumulative convictions through qualifying the concerns as limited to sentencing only.

Article 20 of the Rome Statute is different. Rather than acts, it

prohibits retrial by the Court of conduct already before it, and prohibits a person from being “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.”12 The use of the term

“conduct” could suggest a desire to emphasize a behavior-based approach to ne bis in idem; however, the explicit reference to Article 5 suggests legal characterization.

Furthermore, Article 20(3) prevents a person “who has been

tried by another court for conduct also proscribed under Article 6, 7 or 8 [from being] tried by the Court with respect to the same conduct.”13 This again confuses things because the Article suggests

that retrial on conduct is prohibited. This interpretation is buttressed by the fact that Article 20 removed entirely the exception for acts tried as “ordinary crimes.” Despite some ambiguities, academics have confidently stated that Article 20 prohibits subsequent trials for

the same conduct.14 If this is true, it seems difficult to conceptually distinguish between repeated trials and overlapping convictions

11. Id. at 550 n.37 (citing Prosecutor v. Musema, Decision on the Formal Request for Deferral Presented by the Prosecutor, Case No. ICTR-96-5-D (Int‟l Crim. Trib. for Rwanda Mar. 12, 1996)); id. at 550 n.38 (citing Prosecutor v. Radio Television Libre des Milles Collines SARL, Decision on the Formal Request for Deferral Presented by the Prosecutor, Case No. ICTR-96-6-D (Int‟l Crim. Trib. for Rwanda Mar. 12, 1996)); id. at 550 n.39 (citing Prosecutor v. Bagosora, Decision on the Application by the Prosecutor for a Formal Request for Deferral, Case No. ICTR-96-7-D (Int‟l Crim. Trib. for Rwanda May 17, 1996)).

12. Rome Statute of the International Criminal Court art. 20, adopted July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute], available at http://untreaty.un.org/cod/icc/statute/romefra.htm (last visited May 19, 2011).

13. Id. art. 20(3).

14. See, e.g., Mohamed El Zeidy, The Doctrine of Double Jeopardy in International Criminal and Human Rights Law, 6 MEDITERRANEAN J. OF HUM. RTS., 183, 235 (2002); Bohlander, supra note 10, at 550 (stating text of Article 20 is clearer and stricter than law in previous Tribunal cases).


based on the same facts. If a court cannot try an accused for crimes against humanity after he has been convicted or acquitted of genocide on the same facts, why can it try him for both offenses at once and convict on both? The ad hoc Tribunals operate as if there

were a distinction.

The unwillingness to accept that cumulative convictions are in effect a retrial of the same conduct may lie within the rationales for

ne bis in idem. The doctrine of double jeopardy is intended to protect an accused from the anxiety, cost, and embarrassment of repeated prosecutions as well as prevent the risk that repeated kicks at the proverbial can could eventually make any innocent person

seem guilty. Such concerns are minimized when only one trial occurs. Ne bis in idem also protects the integrity of the legal system by ensuring finality.15 This finality is of concern to the international community because it “helps to ensure stability in international legal

relations by preventing the interminable pursuit of international criminals between jurisdictions,” and highlights “the importance to the international legal order of a sense of the international community.”16 Yet, cumulative convictions do not impact

complementarity between the international and domestic spheres, and thus this rationale does not apply.

Some authors claim that the use of cumulative convictions will

undermine the credibility of substantive international criminal law because the “tangled meshing of all three crimes is prima facie evidence of existing conceptual weaknesses in international crimes.”17 Arguably, no legal system is conceptually sound when it

cannot develop a principled framework governing the relationship of crimes within its jurisdiction. There is something intrinsically wrong with convicting someone for multiple crimes stemming from the same act, no matter how serious, unless there is some fair reason for

doing so. While one might argue that the Tribunals have an obligation to ensure that the full truth is revealed, there is no reason an extensive review of the accepted facts cannot serve this function without exposing the accused to repeated criminalization. The ad

hoc Tribunals and International Criminal Court are not truth commissions. While their mandates may be, broadly speaking, to

15. PAUL A. MCDERMOTT, RES JUDICATA AND DOUBLE JEOPARDY 201-04 (1999); see also Gerard Conway, Ne Bis in Idem in International Law, 3 INT‟L

CRIM. L. REV. 217, 223-24 (2003); El Zeidy, supra note 14, at 198-99.

16. Conway, supra note 15, at 223. 17. OLUSANYA, supra note 3, at 8.


“end impunity,” this goal is not necessarily undermined by prohibiting cumulative convictions. The emotive force of a conviction for genocide is arguably undermined if the Chamber down the hall convicts for genocide, crimes against humanity, and

war crimes.

Certainly, the international community has a right to ensure proper punishment of people who commit such grave crimes.18

Indeed, the international statutes give fairly free range to judges to impose appropriate periods of incarceration; the statutes simply say that the penalties “shall be limited to imprisonment.”19 The International Criminal Court can impose a maximum of thirty years,

with the availability of a life sentence in certain circumstances.20 Hence, the idea that cumulative convictions are necessary to ensure the offender receives the appropriate sentence is not grounded in reality.

There can be considerable consequences for an accused who is convicted of multiple offenses for the same facts, including enhanced social stigma and impact on early release eligibility or habitual

offender status.21 Certainly, there is already some evidence that accused persons face prejudice by virtue of the nature of the crimes of which they are convicted. In October 2009, Mr. Radislav Krstić, convicted by the Yugoslav Tribunal of genocide and incarcerated in

Britain, was denied a prison transfer request to a lower security facility on the basis of the inherent seriousness of genocide.22 On judicial review, the High Court returned the matter for reconsideration because the deciding body “failed to look beyond the

gravity of the offence to ask himself the right question—which was whether [Mr. Krstić] was highly dangerous at the date of the relevant decision.”23 If the characterization of the crime can cause prejudice

18. El Zeidy, supra note 14, at 232.

19. Rwanda Statute, supra note 8, art. 23(1); Yugoslav Statute, supra note 8, art. 24(1).

20. See Rome Statute, supra note 12, art. 77(1).

21. Prosecutor v. Delalić et al. (Čelebići), Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, ¶ 23, Case No. IT-96-21-A (Int‟l Crim. Trib. for the former Yugoslavia Feb. 20, 2001); see also Prosecutor v. Kunarac, Appeals Judgment, ¶ 169, Case No. IT-96-23 & IT-96-23/1-A (Int‟l Crim. Trib. for the former Yugoslavia June 12, 2002); Prosecutor v. Musema, Appeals Judgment, ¶¶ 396-370, Case No. ICTR-96-13-A (Int‟l Crim. Trib. for Rwanda Nov. 16, 2001).

22. Krstić v. Sec‟y of State for Justice [2010] EWHC (Admin.) 2125, ¶ 9 (Eng.).

23. Id. ¶ 25.


to the accused in such a manner, multiple convictions based on different legal characterizations raise similar risks of prejudice by analogy. The paper now turns to a consideration of how cumulative convictions are dealt with throughout the jurisprudence of the ad hoc

Tribunals.

II. THE APPROACHES TO CUMULATIVE CONVICTIONS BY THE AD

HOC TRIBUNALS

This section has two stages. The first deals with the early jurisprudence of the ad hoc Tribunals in relation to cumulative

convictions. The second deals with the application of the Čelebići test and argues that it is unprincipled and has resulted in inconsistent interpretations by the Tribunals.

A. The Wind up and the Pitch: Tadić, Akayesu, Kupreškić, and

Čelebići

The Tadić case of the Yugoslav Tribunal set the stage for how the ad hoc Tribunals came to analyze cumulative convictions. For the same beating, Mr. Tadić was convicted on a charge of crimes

against humanity and a charge of war crimes; concurrent sentences were imposed. The Trial Chamber characterized concerns surrounding cumulative convictions as relevant only to penalty, which “cannot be made to depend upon whether offences arising

from the same conduct are alleged cumulatively or in the alternative.”24 Cumulative convictions on the same facts were dismissed as “technicalities of pleading.”25

The Akayesu judgment from the Rwanda Tribunal recognized

that double jeopardy is implicated when an accused is convicted of multiple crimes for the same set of facts, but assumed there was no prejudice because the sentences ran concurrently.26 Cumulative convictions were deemed permissible if one of three tests was

satisfied:

24. Prosecutor v. Tadić, Decision on Defence Motion on Form of the Indictment, ¶ 10, Case No. IT-94-1-T (Int‟l Crim. Trib. for the former Yugoslavia Nov. 14, 1995).

25. Id.

26. Prosecutor v. Akayesu, Judgment, ¶¶ 462, 466, Case No. ICTR-96-4-T (Int‟l Crim. Trib. for Rwanda Sept. 2, 1998).


(1) the offences have different elements; or

(2) the provisions creating the offences protect different interests; or

(3) it is necessary to record a conviction for both offences in order fully to

describe what the accused did.27

The Trial Chamber rejected the contentions that the crimes were

lesser included offenses of each other or that there was any hierarchy of offenses, despite stating that “genocide may be considered the gravest crime.”28 Each crime protects different interests: genocide

protects groups from extermination; crimes against humanity protect civilian populations from persecution; and war crimes protect non-combatants in armed conflict. These crimes were “never co-extensive.”29

The Trial Chamber in Kupreškić disagreed with Akayesu on the nature of the crimes in question: “[E]ach Article of the [Yugoslav] Statute does not confine itself to indicating a single category of well-defined acts [but rather] embrace broad clusters of . . . diverse

acts.”30 Despite this, the Kupreškić Trial Chamber largely agreed with Akayesu on the applicable legal analysis:

[T]he relevant question here is whether murder as a war crime requires

proof of facts which murder as a crime against humanity does not require,

and vice versa . . . . Another relevant question is whether the prohibition of

murder as a war crime protects different values from those safeguarded by

the prohibition of murder as a crime against humanity.31

While Kupreškić effectively adopted the Akayesu “different elements” and “different values” tests, the result was very different. The Trial Chamber found that murder as a crime against humanity

required proof of the additional element of “part of a systematic or widespread attack on the civilian population,” not required by war crimes. Therefore, “the two offences [were] not in a relationship of reciprocal speciality,” as “[t]he prohibition of murder as a crime

against humanity is lex specialis in relation to the prohibition of murder as a war crime.”32 Cumulative convictions were not warranted.

27. Id. ¶ 468.

28. Id.

29. Id. ¶ 469.

30. Prosecutor v. Kupreškić, Trial Judgment, ¶ 697, Case No. IT-95-16-T (Int‟l Crim. Trib. for the former Yugoslavia Jan. 14, 2000).

31. Id. ¶ 700. 32. Id. ¶ 701.


To be fair, the Yugoslav Statute had an element in its crimes against humanity article requiring that the offenses be committed in the context of armed conflict. Thus, the Kupreškić Trial Chamber did not address the question of how this test should be applied when

the inter-article convictions involved “armed conflict” as an element for war crimes, and “widespread or systematic attack” for crimes against humanity. Nevertheless, both Akayesu and Kupreškić are significant as early indications that the ad hoc Tribunals were

prepared to consider contextual elements when assessing cumulative convictions.

The Čelebići case from the Yugoslav Tribunal became the main

authority on the issue of cumulative convictions.33 The material elements test mentioned in Kupreškić and originating in the U.S. Supreme Court case of Blockburger v. United States34 was adopted by the majority of the Čelebići Appeals Chamber:

[R]easons 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.35

Čelebići further held that “[w]here this test is not met . . . the conviction under the more specific provision should be upheld.”36 In

other words, “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.”37

The Appeals Chamber analyzed four pairs of purported

cumulative convictions. Each involved convictions for war crimes under Articles 2 and 3 of the Yugoslav Statute, grave breaches of the Geneva Conventions and violations of the laws or customs of war

respectively. After considering the elements of each offense, the Appeals Chamber found that Article 2 required the victim to be a “protected person” while Article 3 required the victim to be “taking

33. Prosecutor v. Delalić et al. (Čelebići), Appeals Judgment, ¶ 1, Case No. IT-96-21-A (Int‟l Crim. Trib. for the former Yugoslavia Feb. 20, 2001).

34. Blockburger v. United States, 284 U.S. 299 (1932).

35. Id. ¶ 412 (emphasis added).

36. Id. ¶ 413. 37. Id.


no active part in hostilities.”38 Thus, Article 2 had an element materially distinct from Article 3 which required the proof of additional facts “because the definition of a protected person includes yet goes beyond what is meant by an individual taking no

active part in the hostilities.”39 Article 3, on the other hand, did not satisfy the test because no additional facts were required to prove that a protected person was taking no active part in hostilities. Article 2 was a more specific version of Article 3 and thereby

subsumed Article 3. Double convictions were not justified.40

The material elements test is appealing because it is rational in a domestic jurisdiction. In Blockburger, the accused was convicted of

two offenses for a single drug sale: the failure to obtain the required taxation stamp and the failure to obtain a written order from the purchaser. While there was only one transaction, two separate convictions were justified because proof of a failure to obtain a

stamp was a separate element requiring proof of facts other than those required for failure to obtain a written order.41 The application of the material elements test permitted double convictions based on different elements all within the control of the accused.

The elements of the crimes in Blockburger are not analogous to those considered in Čelebići. Whether the victim meets the legal definition of a protected person for the purposes of war crimes is not

within the control of the accused. The accused may fully be aware of the circumstances that create this protected status—indeed, this is an element of the offense—but he himself did not attribute the definition of “protected person” to his victim. A person is a

protected person for the purpose of a war crimes prosecution only pursuant to the grave breaches provisions. The definition is in reference to the circumstances in which the accused finds himself. In other words, the protected person element is a mixed contextual-

actus reus element. The Čelebići test fails to appreciate this, and has treated what is a mixed element as if it were a traditional actus reus element.

The greatest difficulty with developing a coherent approach to

cumulative convictions is the mixed nature of many of the elements in the core crimes. This becomes more conceptually difficult when

38. Id. ¶ 423.

39. Prosecutor v. Delalić et al. (Čelebići), Appeals Judgment, ¶ 423, Case No. IT-96-21-A (Int‟l Crim. Trib. for the former Yugoslavia Feb. 20, 2001).

40. Id. ¶¶ 421-27. 41. Blockburger v. United States, 284 U.S. 299, 303-04 (1932).


considering mixed contextual-mens rea elements. For example, in the Rome Statute, one of the elements for all acts of crimes against humanity is that “[t]he perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic

attack directed against a civilian population.”42 The perpetrator need not intend to cause the widespread or systematic attack. He merely needs to have been aware that he was acting in the context of such, or to have intended to be acting in the context of such. The Elements

of Crimes explicitly recognize that this is a contextual element.43

The dissent in Čelebići attempted to address this problem with a conduct-based material elements test:

[T]he fundamental consideration arising from charges relating to the same

conduct is that an accused should not be penalised more than once for the

same conduct. The purpose of applying this test is therefore to determine

whether the conduct of the accused genuinely encompasses more than one

crime. For that reason, we believe that it is not meaningful to consider for

this purpose legal prerequisites or contextual elements which do not have a

bearing on the accused’s conduct, and that the focus of the test should

therefore be on the substantive elements which relate to the accused’s

conduct including his mental state . . . .

We believe that taking into account such abstract elements creates the

danger that the accused will also be convicted . . . in respect of additional

crimes which have a distinct existence only as a purely legal and abstract

matter, effectively through the historical accidents of the way in which

international humanitarian law has developed in streams having distinct

contextual requirements.44

The dissenting Justices argued that the consideration of legal or

contextual elements will have a particularly problematic impact on cumulative convictions between articles where the only distinguishing features are contextual or legal elements.45 A version

of this conduct-based approach is preferred, as is explicated below.

The dissent approved of the majority‟s reasoning that an accused should be convicted of the more specific provision when there are additional elements but no necessity to prove additional

42. See Preparatory Comm‟n for the Int‟l Criminal Court, Finalized Draft Text of the Elements of Crimes art. 7(1)(a-g), U.N. Doc. PCNICC/2000/1/Add.2 (Nov. 2, 2000).

43. Id.

44. Delalić (Čelebići), Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, ¶¶ 26-27, Case No. IT-96-21-A (citations omitted).

45. Id. ¶¶ 30-32.


facts.46 Congruent with its conduct-based analysis, the dissent qualified its agreement:

[W]hen a choice must be made between two cumulatively charged

offences, that choice should be made by reference to specificity, but only

in the sense that the crime which more specifically describes what the

accused actually did in the circumstances of the particular case should be

selected . . . . In our view, the choice should involve a consideration of the

totality of the circumstances of the particular case and of the evidence

given in relation to the crimes charged, in order to describe most

accurately the offence that the accused committed and to arrive at the

closest fit between the conduct and the provision violated. This would

involve a consideration of all of the elements of the offences to determine

whether one of the offences better or more specifically describes what the

accused did.47

There are two problems with this analysis. First, the majority

did not necessarily exclude consideration of substantive elements. Three of the four pairs of cumulative convictions in Čelebići involved offenses where the substantive elements were the same: wilful killing/murder; torture/torture; and inhuman treatment/cruel

treatment under Articles 2 and 3 of the Yugoslav statute respectively. With the fourth pair of cumulative convictions, willfully causing great suffering or serious injury to body or health/cruel treatment, the only arguable difference is that cruel treatment includes that the

conduct may also be characterized as “constituting a serious attack on human dignity.”48 The majority‟s focus on the contextual distinctions should not be read to exclude consideration of substantive elements.

Secondly, the dissent has assumed that conduct-based analysis is also appropriate to assess inter-article cumulative convictions. Take, for example, an accused who faces conviction for torture as a

war crime and torture as a crime against humanity. Pursuant to a conduct-based analysis of the material elements, there are no distinct material elements for which different facts must be proven, and cumulative convictions are unwarranted. When considering which

crime to select, a conduct-based analysis is not instructive because the distinctions are entirely contextual. It is bizarre to criticize the

46. Id. ¶ 36.

47. Id. ¶ 37 (emphasis in original). 48. The dissent recognizes this distinction. See Delalić (Čelebići), Separate

and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, ¶ 53, Case No. IT-96-21-A; see also Delalić (Čelebići), Appeals Judgment, ¶ 414, Case No. IT-96-21-A (Int‟l Crim. Trib. for the former Yugoslavia Feb. 20, 2001) (summarizing convictions).


majority‟s view of the chapeau elements as permissible, materially distinct elements because they cannot be attributed to the conduct of the accused, while advocating for a test that seemingly permits consideration of the chapeau elements at the second stage. The

dissent appears not to have thought through the applicability of conduct-based analysis to all categories of cumulative convictions.

The dissent also rejected a hierarchy of offenses as undesirable

and overly rigid.49 Judges Hunt and Bennouna looked at Tadić, which held that there was “in law no distinction between the seriousness of a crime against humanity and that of a war crime.”50 The proposition that there is no hierarchy of seriousness is not in

accordance with the jurisprudential and statutory records of the ad hoc Tribunals. Regardless, even if for the purposes of sentencing there is no hierarchical consideration between the crimes before the Tribunal, it does not follow that no hierarchy exists for the purposes

of ascertaining which offense an accused should be convicted of if seriousness is not the measure. The dissent also convolutes the distinction between inherent seriousness of the offense as genocide or a war crime and the seriousness of the facts of the case. One

could easily view genocide as inherently more serious than war crimes; one could just as easily view one form of genocide, such as killing, as more serious than another, such as causing serious bodily harm. They are separate assessments of seriousness.

There are discernable problems with the tests suggested by both the majority and dissenting judges in Čelebići. The majority has superficially applied a test developed in a domestic jurisdiction

without modifying it to consider the unique circumstances of international criminal law. The dissent‟s alternative, while preferable, is not without its flaws. As Justices Hunt and Bennouna recognized, it is improbable that domestic courts have ever had to

grapple with the application of the material elements test to the crimes within the jurisdiction of the Tribunal.51 Certainly, “the particular nature of offences within the Tribunal‟s jurisdiction . . . have elements with no real equivalents of most crimes in domestic

49. Delalić (Čelebići), Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, ¶ 41, Case No. IT-96-21-A (citing Prosecutor v. Tadić, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, (Int‟l Crim. Trib. for the Former Yugoslavia Jan. 26, 2000)).

50. Id.

51. Delalić (Čelebići), Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, ¶ 20, Case No. IT-96-21-A.


jurisdictions.”52 To demonstrate the problems with the Čelebići test, it is helpful to consider its application in practice.

B. The Čelebići Test in Practice

The Čelebići test has been criticized by parallel Appeals

Chambers as “deceptively simple” and “difficult to apply in a way that is conceptually coherent and promotes the interests of justice.”53 The application of the test in subsequent case law has proven as

such. Two trends have emerged. First, despite some early resistance, inter-article cumulative convictions based exclusively on contextual distinctions are consistently permitted. Second, there is no consistency, even with the same substantive offences, in the

jurisprudential approach to intra-article cumulative convictions. Each scenario is considered in turn.

1. Inter-Article Cumulative Convictions

The first relevant post-Čelebići case was Jelisić from the

Yugoslav Tribunal. The facts involved cumulative convictions for war crimes and crimes against humanity for a particularly egregious number of otherwise substantively identical charges:

There were three separate allegations of causing bodily harm and twelve

separate allegations of murder. Each of the three allegations of causing

bodily harm was charged, first, as a violation of the laws or customs of war

(cruel treatment), contrary to Article 3 of the Statute, and, secondly, as a

crime against humanity (inhumane acts), contrary to Article 5 of the

Statue. Each of the 12 allegations of murder was charged, first, as a

violation of the laws or customs of war, contrary to Article 3 of the Statute,

and, secondly, as a crime against humanity, contrary to Article 5 of the

Statute.54

The Appeals Chamber imposed these convictions after a superficial interpretation of the material elements test:

Following the reasoning of the Appeals Chamber in Delalić [Čelebići]

appeal judgement, the Appeals Chamber notes that, Article 3 [war crimes]

52. Id. ¶ 25.

53. Compare SCHABAS, supra note 2, at 434-35 (citing Prosecutor v. Kunarac, Appeals Judgment, ¶ 172, Case No. IT-96-23 & IT-96-23/1-A (Int‟l Crim. Trib. for the former Yugoslavia Jun. 12, 2002)), with Prosecutor v. Semanza, Judgment and Sentence, ¶ 13, Case No. ICTR-97-20-T (Int‟l Crim. Trib. of Rwanda May 15, 2003) (citing Kunarac).

54. Prosecutor v. Jelisić, Judgment, ¶ 81, Case No. IT-95-10-A (Int‟l Crim. Trib. for the former Yugoslavia July 5, 2001).


requires a close link between the acts of the accused and the armed

conflict; this element is not required by Article 5 [crimes against

humanity]. 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.55

That the accused was convicted literally of double the murder convictions than the facts proved is startling, as there are otherwise

no substantive differences between the two murder provisions. The elements of “cruel treatment” as a war crime, and “inhumane acts” as a crime against humanity, are also virtually identical. The Jelisić case demonstrates that “the accused suffered prejudice as a result of

the mechanical application of the reasoning adopted by the Čelebići majority.”56 It also demonstrates an early misinterpretation of Čelebići, finding it acceptable that one of the two offenses had a materially distinct element, rather than considering whether the

provisions each had materially distinct elements, each of which required proof of additional facts.

The Trial Chamber in Krstić released its judgment a short

month after the Jelisić decision. Although subsequently overruled on this issue,

57 it is useful as an example of how a conduct-based analysis at the stage of assessing whether a materially distinct element existed could work. The Trial Chamber refused to impose

inter-article cumulative convictions for genocide by causing serious bodily harm and a crime against humanity of persecutions, and for genocide by killing and a crime against humanity of extermination.58 The Trial Chamber considered the elements of genocide and

persecutions and found that the only distinction was the form of intent: “[t]he offences of genocide and persecutions both require proof of a special intent, respectively an intent to destroy a particular type of group (or part of that group) as such and an intent to

discriminate against persons on political, racial or religious

55. Id. ¶ 82.

56. Bogdan, supra note 1, at 28.

57. Prosecutor v. Krstić, Appeals Judgment, ¶¶ 218-33, Case No. IT-98-33-A (Int‟l Crim. Trib. for the former Yugoslavia Apr. 19, 2004).

58. Prosecutor v. Krstić, Trial Judgment, ¶ 684, Case No. IT-98-33-T (Int‟l Crim. Trib. for the former Yugoslavia Aug. 2, 2001).


grounds.”59 The intent for persecutions did not require proof of any additional fact than that for genocide and was subsumed by the more specialized intent for genocide. Thus, the Čelebići test was not met.60 This logic appears similar to that displayed in Čelebići, where

the definition of protected person under Article 3 subsumed the definition of the victim under Article 2; however, as discussed, the status of the victim as a protected person is a mixed form of actus reus involving contextual aspects. Here, there is no contextual

aspect to the mens rea of either genocide or persecutions. The intent for both crimes exists free-standing from the circumstances in which the accused finds himself.

The Krstić Trial Chamber, perhaps unintentionally, adopted a

conduct-based analysis of the Čelebići test. The distinction between genocide and persecutions is analogous to the distinction in traditional criminal law between the mens rea for first degree murder

and the mens rea for second degree murder. The former requires planning and deliberation, while the latter only requires intent to kill. They are gradations of each other; no accused should be convicted of both with respect to the same homicide.

For the offenses of genocide by killing and the crime against humanity of extermination, the Krstić Trial Chamber found that the only distinction was that while crimes against humanity required the

targeting of civilians, genocide had “a distinct additional requirement, in terms of the nature of the group targeted.”61 Again, as genocide had the more specialized mens rea, it was retained. The argument could be made that the definition of a civilian would not

exist but for the armed conflict. Yet this analysis was relative to the definition of the targeted group with a determination that “targeted group” is narrower than “civilian.” While the scope of who fits into the definition of targeted group is defined in a manner outside of the

accused‟s control, the existence of the targeted group is not dependent upon the circumstances of the accused. Unlike in Čelebići, where a protected person does not exist but for an armed conflict, targeted groups exist regardless of context.

The Krstić Trial Chamber did, however, impose cumulative convictions, as war crimes and as crimes against humanity, for the same murders. Like in Jelisić, the Tribunal looked entirely at contextual elements: the war crime elements of non-combatant

59. Id.

60. Id. 61. Id. ¶ 685.


person and nexus with an armed conflict were contrasted with the required crimes against humanity element that the act be part of a widespread or systematic attack on a civilian population.62

The Musema case was the first at the Rwanda Tribunal to apply

the Čelebići test, and it essentially mirrored Jelisić. Shortly after Musema, Justice Dolenc of the Trial Chamber in Semanza recognized in his Separate and Dissenting Opinion that this test

effectively meant cumulative convictions would always be justified for inter-article convictions:

In my opinion, the criteria articulated and applied in Musema are too

formalistic, and result in cumulative convictions in instances where they

should not be allowed. Although the Musema test purports to limit

cumulative convictions by requiring that each of the cumulative crimes

have different elements, the practical result is that inter-article cumulative

convictions for the three crimes in the Statutes are always possible without

any legal obstacle.63

Justice Dolenc‟s observation has manifested, as inter-article cumulative convictions based solely on contextual elements are now a well established interpretation of the Čelebići test.64 The Appeals Chamber of the Yugoslav Tribunal aptly put it: “[T]he legal

prerequisites describing the circumstances of the relevant offences as stated in the chapeaux of the relevant Articles of the Statute constitute elements which enter the calculus of permissibility of cumulative convictions.”65 This was based on “the animating desire

that all species of such crimes be adequately described and

62. Id. ¶ 674.

63. Prosecutor v. Semanza, Judgment and Sentence, ¶ 1, Case No. ICTR-97-20-T (Int‟l Crim. Trib. for Rwanda May 15, 2003).

64. See, e.g., Prosecutor v. Musema, Appeals Judgment, ¶¶ 361-67, Case No. ICTR-96-13-A (Int‟l Crim. Trib. for Rwanda Nov. 16, 2001); see also Prosecutor v. Ntakirutimana & Ntakirutimana, Appeals Judgment, ¶ 542, Case No. ICTR-96-10-A & ICTR-96-17-A (Int‟l Crim. Trib. for Rwanda Dec. 13, 2004); Prosecutor v. Vasiljevic, Judgment, ¶¶ 144-45, Case No. IT-98-32-A (Int‟l Crim. Trib. for the former Yugoslavia Feb. 25, 2004); Prosecutor v. Kamuhanda, Judgment, ¶ 582, Case No. ICTR-95-54A-T (Int‟l Crim. Trib. for Rwanda Jan. 22, 2004); Prosecutor v. Semanza, Judgment, ¶¶ 369-70, Case No. ICTR-97-20-A (Int‟l Crim. Trib. for Rwanda May 20, 2005); Prosecutor v. Ndindabahizi, Judgment, ¶ 491, Case No. ICTR-2001-71-I (Int‟l Crim. Trib. for Rwanda July 15, 2004); Prosecutor v. Ntagerura, Bagambiki & Imanishimwe, Judgment, ¶ 425, Case No. ICTR-99-46-A (Int‟l Crim. Trib. for Rwanda July 7, 2006); Prosecutor v. Simba, Judgment, ¶ 277, Case No. ICTR-01-76-A (Int‟l Crim. Trib. for Rwanda Nov. 27, 2007); Prosecutor v. Nahimana, Bamyagwiza & Ngeze, Judgment and Sentence, ¶ 1090, Case No. ICTR-99-52-T (Int‟l Crim. Trib. for Rwanda Dec. 3, 2003).

65. Prosecutor v. Kunarac, Appeals Judgment, ¶ 177, Case No. IT-96-23 & IT-96-23/1-A (Int‟l Crim. Trib. for the former Yugoslavia June 12, 2002).


punished.”66 Such views suggest that the Tribunals, while claiming that the accused is not prejudiced by cumulative convictions, understands cumulative convictions to be an enhanced form of punishment, in direct contradiction to the ne bis in idem principle.

2. Intra-Article Cumulative Convictions

While there is at least consistency on inter-article convictions, the Čelebići test has provided no such consistency for intra-article

cumulative convictions. In the cases of Krnojelac, Vasiljevic, and Krstić, cumulative convictions were prohibited for the crimes against humanity of murder and persecutions. The rationale was that murder was subsumed by persecutions, which had the materially distinct

element of discriminatory intent.67 These cases also found that cumulative convictions for crimes against humanity of persecutions and inhumane acts were impermissible because “the crime of persecution in the form of inhumane acts subsumes the crime against

humanity of inhumane acts.”68 In a stark contradiction, the Appeals Chamber of the Yugoslav Tribunal found in Prosecutor v. Dario Kordić & Mario Čerkez:

The Appeals Chamber considers that cogent reasons warrant a departure

from [Krnojelac, Vasiljevic, and Krstić] 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 Chamber in Jelisić, Kupreškić, Kunarać, and Musema . . . . [T]he

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.69

The Appeals Chamber went on to impose cumulative

convictions for persecutions and murder as crimes against humanity

66. Id. ¶ 178.

67. SCHABAS, supra note 2, at 437 (citing Vasiljević, Judgment, ¶ 146, Case No. IT-98-32-A; Prosecutor v. Krstić, Appeals Judgment, ¶¶ 231-32, Case No. IT-98-33-A (Int‟l Crim. Trib. for the former Yugoslavia Apr. 19, 2004)).

68. Prosecutor v. Kordić, Appeals Judgment, ¶ 1039, Case No. IT-95-14/2-A (Int‟l Crim. Trib. for the former Yugoslavia Dec. 17, 2004) (citing Prosecutor v. Krnojelac, Appeal Judgment, ¶ 188, Case No. IT-97-25 (Int‟l Crim. Trib. for the former Yugoslavia Sept. 17, 2003)); Vasiljević, Trial Judgment, ¶¶ 144-45, Case No. IT-98-32-A; Krstić, Appeals Judgment, ¶¶ 218-33, Case No. IT-98-33-A.

69. Kordić, Appeals Judgment, ¶ 1040, Case No. IT-95-14/2-A.


on the basis that the former had materially distinct elements of “the requirement of proof that an act or omission discriminate in fact and proof that the act or omission was committed with specific intent to discriminate.”70 Murder was proven “regardless of whether the act

or omission causing the death discriminates in fact or was specifically intended as discriminatory.”71 Likewise for persecutions and other inhumane acts, and for persecutions and imprisonment, the discriminatory act with specific intent were the materially distinct

elements warranting cumulative convictions. Each of these cumulative convictions was permitted.72

With respect, the Appeals Chamber in Kordić & Čerkez is

wrong, even on a context-based and conservative reading of Čelebići. As mentioned above, the test does not simply require that one of the two offenses have a materially distinct element requiring proof of an additional fact—both offenses must require proof of

different facts. Čelebići rejected cumulative convictions under Articles 2 and 3 of the Yugoslav Statute because the additional fact establishing that the victim was a protected person under Article 2 subsumed the Article 3 definition of the victim as taking no active

part in hostilities. While an additional fact had to be proven for Article 2, no additional fact had to be proven for Article 3.73

The Trial Chamber in Nchaminigo, on the other hand, found

that other inhumane acts as a crime against humanity could not overlap with other forms of crime against humanity because the former was “subsumed by every other crime against humanity as it requires no additional element to any other crime against

humanity.”74 The same ruling held that murder and extermination as crimes against humanity could not result in cumulative convictions because, while the extermination did require murder at a mass scale, a single murder would be subsumed in this.75 Both these conclusions

70. Id. ¶ 1043.

71. Id. ¶ 1041. 72. Id. ¶ 1044.

73. Delalić (Čelebići), Appeals Judgment, ¶¶ 421-26, Case No. IT-96-21-A (Int‟l Crim. Trib. for the former Yugoslavia Feb. 20, 2001).

74. Prosecutor v. Nchamingo, Judgment and Sentence, ¶ 344, Case No. ICTR-01-63-T (Int‟l Crim. Trib. for Rwanda Nov. 12, 2008).

75. See Prosecutor v. Kayishema, Trial Judgment, ¶¶ 647-650, Case No. ICTR-95-1-T (Int‟l Crim. Trib. for Rwanda May 21, 1999); Prosecutor v. Rutaganda, Judgment and Sentence, ¶ 422, Case No. ICTR-96-3 (Int‟l Crim. Trib. for Rwanda Dec. 6, 1999); Prosecutor v. Musema, Judgment and Sentence, ¶ 957, Case No. ICTR-96-13-T (Int‟l Crim. Trib. for Rwanda Jan. 27, 2000); Prosecutor v. Semanza, Separate and Dissenting Opinion of Judge Pavel Dolenc, ¶¶ 500-05,


are correct interpretations of the traditional Čelebići test.

As a final example, the Appeals Chamber in Semanza held that cumulative convictions for the crimes against humanity of rape and

torture were permissible, while the Pre-Trial Chamber of the International Criminal Court reached the opposite conclusion in Bemba. However, there was no analysis in Semanza: the Tribunal merely stated that “the convictions for instigating the rape of Victim

A (Count 10) and the torture of Victim A (Count 11) present no problems of cumulativeness, because they contain different legal elements.”76 As mentioned, the rationale in Bemba was the converse; this partly stemmed from the fact that under the Rome

Statute and the Elements of Crimes, “the definition of torture as a crime against humanity, unlike the definition of torture as a war crime, does not require the additional element of a specific purpose.”77 Nevertheless, the thrust of the International Criminal

Court‟s rejection of cumulative charging was its interpretation of Čelebići:

The Chamber considers that, as a matter of fairness and expeditiousness of

the proceedings, only distinct crimes may justify a cumulative charging

approach and, ultimately, be confirmed as charges. This is only possible if

each statutory provision allegedly breached in relation to one and the same

conduct requires at least one additional material element not contained in

the other.78

The Court then also pointed to Regulation 55, which permits the judges to alter the legal characterization of the charges, making it unnecessary for the Prosecutor to charge cumulatively.79

Bemba indicates that the International Criminal Court will likely follow the precedents of the ad hoc Tribunals on this issue.

Thus, it is clear that the Čelebići test is unsatisfactory. The Tribunals have rubber stamped cumulative convictions for inter-

article convictions and convoluted the application of the test when

Case No. IT-98-30/1-T (Int‟l Crim. Trib. for Rwanda May 15, 2003).

76. Semanza, Appeals Judgment, ¶ 319, Case No. ICTR-97-20-A (Int‟l Crim. Trib. for Rwanda May 20, 2005).

77. Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 195, Case No. ICC-01/05-01/08 (Jun. 15, 2009), available at http://www.icc-cpiint/iccdocs/doc/doc699541.pdf.

78. Id. ¶ 202 (emphasis added).

79. Id. ¶ 203; see Carsten Stahn, Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55, 16 CRIM. L.F. 1 (2005) (discussing Regulation 55).


dealing with intra-article cumulative convictions. The next section of this paper addresses a proposed solution for the problems raised by Čelebići.

III. THE FUTURE OF CUMULATIVE CONVICTIONS

At the Rome Conference, the intersection of cumulative convictions, double jeopardy, and sentencing was discussed. In addition to informal soundings, “[a]ttempts were also made at

drafting rules governing the relationship between the charges and the decision of the Trial Chamber, in particular with regard to concurrence of offences.”80 Unfortunately, these efforts were abandoned due to the “major differences between the dominant legal

systems, and the risk of re-opening intractable discussions of the intrinsic penal value of various crimes.”81

Despite this, there is convincing evidence that a hierarchy of

crimes exists. Such a hierarchy becomes important when dealing with inter-article cumulative convictions because when the only distinctions between offences are contextual elements, the hierarchy can provide a court or tribunal a clear direction for conviction and

greater consistency between cases. The evidence in support of a hierarchy is examined in detail before a specific proposal for a modified Čelebići test is outlined.

A. The Inter-Article Hierarchy of Crimes

Early in the jurisprudence, there were some indications that a

hierarchy would be recognized. In the Tadić Sentencing Judgment, the Trial Chamber for the Yugoslav Tribunal found that, things being otherwise equal, crimes against humanity were more serious than

war crimes.82 In Erdemovic, the Appeals Chamber returned the matter to the Trial Chamber after finding that the accused was not informed of the relative seriousness of the crimes when pleading guilty to crimes against humanity over war crimes.83 This trajectory,

however, was reversed by the Appeals Chamber in Tadić which

80. Rolf Fife, Note on Multiple Offences, in THE INTERNATIONAL CRIMINAL

COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE 537 (Roy S. Lee ed., 2001).

81. Id.

82. Prosecutor v. Tadić, Sentencing Judgment, ¶ 73, Case No. IT-94-1-T (Int‟l Crim. Trib. for the former Yugoslavia July 14, 1997).

83. Prosecutor v. Erdemovic, Appeal Judgment, ¶ 20, Case No. IT-96-22-A (Int‟l Crim. Trib. for the former Yugoslavia Oct. 7, 1997).


found that “there [was] in law no distinction between the seriousness of a crime against humanity and that of a war crime.”84 In a separate opinion, Justice Cassese disagreed and advanced the idea that “„system criminality‟ is inherent only in the concept of the crimes

against humanity [making] it an intrinsically more severe crime.”85

Rejection of a hierarchy “fails to take into account inter alia the broader nature of the crimes or the different interests the prohibitions

of the crimes are intended to protect.”86 The ad hoc Tribunals

appeared to consider genocide to be the most serious of crimes, followed by the crime against humanity of persecution, all other forms of crimes against humanity, and then war crimes. Genocide

has been described as “the crime of crimes,”87 “an offence of the most extreme gravity,”88 and “at the apex . . . [of] seriousness.”89 Genocide and crimes against humanity have been called “the most heinous of crimes [that] shock the collective conscience of

mankind,”90 and “inherently aggravating offences” as compared with

84. Tadić, Judgment in Sentencing Appeals, ¶ 69, Case No. IT-94-1-A and IT-94-1-Abis.

85. CLAUS KRESS, War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice, in 30 ISRAEL

YEARBOOK ON HUMAN RIGHTS 103, 128-29 (Yoram Dinstein & Fania Domb eds., 2000) (citing Prosecutor v. Tadić, Separate Opinion of Judge Cassese, Case No. IT-96-1-A and IT-94-1-Abis (Int‟l Crim. Trib. for the former Yugoslavia Jan. 26, 2000)); see also Bogdan, supra note 1, at 6.

86. Prosecutor v. Furundžija, Declaration of Judge Lal Chand Vohrah, ¶ 5, Case No. IT-95-17/1-A (Int‟l Crim. Trib. for the former Yugoslavia July 21, 2000); see also Bogdan, supra note 1, at 7.

87. Prosecutor v. Musema, Judgment and Sentence, ¶ 1001, Case No. ICTR-96-13-T (Int‟l Crim. Trib. for Rwanda Jan. 27, 2000); Prosecutor v. Rutaganda, Judgment and Sentence, ¶¶ 451, 468 Case No. ICTR-96-3 (Int‟l Crim. Trib. for Rwanda Dec. 6, 1999); Prosecutor v. Serushago, Sentence, ¶¶ 15, 27, Case No. ICTR-98-39-A (Int‟l Crim. Trib. for Rwanda Feb. 5, 1999); Prosecutor v. Kambanda, Judgment and Sentence, ¶ 16, Case No. ICTR-97-23-S (Int‟l Crim. Trib. for Rwanda Sept. 4, 1998); Prosecutor v. Furundžija, Corrigendum to Declaration of Judge Lal Chand Vohrah Attached to Judgment of the Appeals Chamber of 21 July 2000, ¶ 11, Case No. IT-95-17/1-A (Int‟l Crim. Trib. for the former Yugoslavia July 21, 2000).

88. Prosecutor v. Kayishema & Ruzindana, Judgment, ¶¶ 8-9, Case No. ICTR-95-1-T (Int‟l Crim. Trib. for Rwanda May 21, 1999).

89. Prosecutor v. Jelisić, Partial Dissenting Opinion of Judge Wald, ¶ 13, Case No. IT-98-10-A (Int‟l Crim. Trib. for the former Yugoslavia July 5, 2001) (cited in SCHABAS, supra note 2, at 562).

90. Prosecutor v. Bagaragaza, Sentencing Judgment, ¶ 31, Case No. ICTR-05-86-S (Int‟l Crim. Trib. for Rwanda Nov. 17, 2009) (citing Prosecutor v. Ruggiu, Judgment and Sentence, ¶ 48, Case No. ICTR-97-32 (Int‟l Crim. Trib. for Rwanda June 1, 2000)); see also Kambanda, Judgment and Sentence, ¶¶ 14, 43, 61, Case No. ICTR-97-23-S.


war crimes.91 Genocide has also been described as a “specific form of crime against humanity,”92 while the crime against humanity of persecution has been described as within the “same genus as genocide”93 with genocide as “the most extreme and inhuman form

of persecution.”94 The intrinsic seriousness of the crimes has also been considered in sentencing.95

Furthermore, if there was no hierarchy, “a prosecutor would not

go to the trouble to prove the additional elements required to establish [crimes against humanity and genocide].”96 The plea bargaining practices of the ad hoc Tribunals also reflect an acknowledgement of a hierarchy. When counsel negotiate, it is

typical for genocide charges to be withdrawn in exchange for a guilty plea to crimes against humanity.97 Prosecutors withdrew genocide charges in the Plavšić, Nikolić, and Obrenović cases although “all three defendants admitted to the same conduct that formed the basis

of the withdrawn charges.”98 These withdrawals also had a concrete impact on sentencing. The Nikolić and Obrenović cases involved the Srebrenica massacre, which the Tribunal had earlier defined as a genocide; genocidiares to date had nearly all received life

sentences.99 In contrast, Mr. Nikolić and Mr. Obrenović received seventeen and twenty-seven years, respectively.100 Given that the Rome Statute permits guilty pleas, such charge bargaining may continue.101

Indeed, there are a number of provisions in the Rome Statute

91. Ruggiu, Judgment and Sentence, ¶ 46, Case No. ICTR-97-32. 92. Prosecutor v. Tadić, Sentencing Judgment, ¶ 8, Case No. IT-94-1-T (Int‟l

Crim. Trib. for the former Yugoslavia July 14, 1997).

93. Prosecutor v. Kupreškić, Trial Judgment, ¶¶ 615, 636, Case No. IT-95-16-T (Int‟l Crim. Trib. for the former Yugoslavia Jan. 14, 2000).

94. Id. ¶ 636.

95. Prosecutor v. Musema, Judgment and Sentence, ¶¶ 1001-04, Case No. ICTR-96-13-T (Int‟l Crim. Trib. for Rwanda Jan. 27, 2000); Prosecutor v. Serushago, Sentence, ¶¶ 16, 27, Case No. ICTR-98-39-A (Int‟l Crim. Trib. for Rwanda Feb. 5, 1999); Kambanda, Judgment and Sentence, ¶ 16, Case No. ICTR-97-23-S.

96. Prosecutor v. Furundžija, Declaration of Judge Lal Chand Vohrah, ¶ 5, Case No. IT-95-17/1-A (Int‟l Crim. Trib. for the former Yugoslavia July 21, 2000).

97. SCHABAS, supra note 2, at 88.

98. Nancy Amoury Combs, Plea Bargaining in International Criminal Proceedings, in INTERNATIONAL CRIMINAL LAW, VOLUME III: ENFORCEMENT 561, 568 (M. Cherif Bassiouni ed., 2008).

99. Id.

100. Id. at 568-69. 101. Rome Statute, supra note 12, art. 65.


which suggest a hierarchy, as outlined by Professor Schabas:

It might be argued that war crimes are less important than both genocide

and crimes against humanity because Article 124 of the Statute allows

States temporarily to “opt-out” of jurisdiction for war crimes at the time of

ratification. Also, two of the defences that are codified by the Statute,

superior orders [Article 33(1)] and defence of property [Article 31(1)(c)],

are admissible only in the case of war crimes, implying that jurisdiction

may exist for war crimes where it can never exist for genocide and crimes

against humanity. The crime of “direct and public incitement” exists only

in the case of genocide [Article 25(3)(e)]; the drafters at Rome rejected

suggestions that this inchoate form of criminality, drawn from Article III

of the 1948 Genocide Convention, be broadened to encompass crimes

against humanity and war crimes.102

Professor Olusanya has suggested that the offenses be ranked by virtue of source and motive.103 This, however, is problematic

because it ignores the fact that these three crimes are jus cogens offenses for which there generally is universal jurisdiction to punish; the source does not necessarily matter. Any ranking based on motive fails to take into account the distinction between motive and intent in

law, and that an accused can have “multiple motives [that] exist cumulatively or alternatively, which in turn overlap.”104 Such an approach also runs the risk of “punishing sinful thoughts rather than harmful deeds.”105

B. The Proposed Approach

Article 30 of the Rome Statute provides a point of departure for considering the future of cumulative convictions:

1. Unless otherwise provided, a person shall be criminally responsible and

liable for punishment for a crime within the jurisdiction of the Court only

if the material elements are committed with intent and knowledge.

2. For the purposes of this Article, a person has intent where:

(a) In relation to conduct, that person means to engage in the

conduct;

(b) In relation to a consequence, that person means to cause that

102. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL

CRIMINAL COURT 87 (3rd ed. 2007) (citations omitted).

103. OLUSANYA, supra note 3.

104. Carl-Friedrich Stuckenberg, Book Note, A Cure for Concursus Delictorum in International Criminal Law?, 16 CRIM. L. F. 368 (2005).

105. Id. at 369.


consequence or is aware that it will occur in the ordinary course of

events.

3. For the purposes of this Article, “knowledge” means awareness that a

circumstance exists or a consequence will occur in the ordinary course of

events. “Know” and “knowingly” shall be construed accordingly.106

This provision imports the language of Čelebići and requires

that all material elements be committed with intent and knowledge. This suggests that for an element to be a “material element” it must be within the control of the accused. Intent is related to the actus reus component of the offense, as a person must both physically act

and mentally intend to effect that physical act. Under Article 30, intent can be for either conduct or consequence, but the accused must cause the conduct or consequence.107 The only exception is for a consequence the person “is aware that it will occur in the ordinary

course of events,” which is connected to knowledge.108 This suggests that the person must at least know that the consequence will follow pursuant to acts he or she is somehow responsible for. Thus, the intent definitions could be interpreted to mean that material

elements cannot involve contextual elements because the accused does not cause these elements. One might argue that the definition of “knowledge” undermines this proposition, because it includes “awareness that a circumstance exists”; however, knowledge must be

coupled with intent, and no crime under the articles of the Rome Statute requires the accused to have caused the context he or she is in. Elements that require the accused to intend to advance a contextual element are not of concern because such an element,

while related to a contextual element, is not itself contextual.

Despite the above criticisms of the Čelebići approach and in light of Article 30, there is no need to throw the baby out with the

bathwater, so to speak. The Čelebići test should merely be particularized to consider only material elements which reflect the requirements of Article 30, the distinctions between inter- and intra-article cumulative offenses, and a hierarchy of offenses.

For the reasons set out above, this author proposes a reconceptualization of Čelebići in the following manner:

106. Rome Statute, supra note 12, art. 30.

107. Donald K. Piragoff & Darryl Robinson, Article 30: Mental Element, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: OBSERVERS‟ NOTES, ARTICLE BY ARTICLE 859-60 (Otto Triffterer ed., 2d ed. 2008).

108. Id. at 861.


The Court’s interpretation of “materially distinct elements” should be

limited to acts devoid of contextual aspects based on the requirements of

intent and knowledge found in Article 30.

If there are no such “context-neutral materially distinct elements,” the

accused should only be convicted of one offense.

For inter-article cumulative convictions, the accused should be convicted

of the presumptively more serious offence based on the hierarchy of

offences. This presumption should be subject to rebuttal by the accused

based on a conduct-based analysis.

If there are “context-neutral materially distinct elements,” the question

should be asked whether each offence has at least one materially distinct

element from the other requiring proof of different facts for each element.

This is consistent with the original intent of Čelebići but has not been

followed by subsequent decisions.

If only one offence has a materially distinct element requiring proof of an

additional fact, that offense should be deemed more specialized. The

accused should be convicted of only this more specialized offense.

If both offenses contain context-neutral materially distinct elements

requiring proof of different facts, the court should impose cumulative

convictions.

This framework takes elements of both the majority and

dissenting opinions in Čelebići but seeks to create a framework which considers each of the types of cumulative convictions addressed throughout this paper. While this seems like an overly complex test, this issue warrants a detailed approach for both the

fairness to the accused and the future coherence of international criminal law.

It is useful to return to the three categories discussed early in

this paper in relation to the examples of rape and torture:

1. Convictions for the same substantive crime as different types of core

crimes, i.e., torture as a crime against humanity, torture as a war crime.

2. Convictions for different substantive crimes as the same type of core

crimes, i.e., rape as a crime against humanity, torture as a crime against

humanity.

3. Convictions for different substantive crimes as different types of core

crimes, i.e., rape as a crime against humanity, torture as a war crime.


Under the modified Čelebići test, none of the combination of cumulative convictions outlined here would be permitted. In the first example, under the current Čelebići model, the accused would be convicted of both offenses because of the routine application of such

convictions when dealing with inter-article cumulative offenses. However, under this modified test, no such cumulative convictions would be permissible because only contextual elements distinguish the offenses, the elements of widespread or systemic attack for

crimes against humanity and armed conflict for war crimes. Thus, the presumption of a hierarchy would impose a conviction for torture as a crime against humanity unless the accused could rebut the presumption. Such a right of rebuttal gives the accused the option of

challenging the fairness of applying the hierarchy to his or her case based on individual circumstances. The presumption maintains consistency throughout the case law.

In the second example, under the traditional Čelebići test

(although Bemba, as mentioned, is an exception), an accused would be convicted of both offenses because rape has a materially distinct element of penetration. The proposed test, however, would not

permit cumulative convictions because the third step would not be satisfied as each crime does not have a separate context-neutral materially distinct element requiring proof of separate facts. Only rape has the additional element; thus the accused would be so

convicted. Under the final example, the same logic as example number two would follow. There is only a materially distinct element for rape, and not for torture. All other distinctions are contextual and thereby not relevant.

IV. CONCLUSION

This paper submits that the approach in Čelebići is flawed and unfair with respect to inter-article convictions and does not result in

consistent decisions for intra-article cumulative convictions. The solution posited seeks to address these concerns in a manner most fair to the accused.

While the jurisprudence has seemingly settled the issue of

cumulative convictions, the Bemba Pre-Trial Chamber‟s refusal to accept cumulative charges for rape and torture suggest that, while inclined to adopt the Čelebići test, the International Criminal Court is also willing to chart its own path on these issues. Indeed, the cases

already before the International Criminal Court demonstrate that cumulative convictions will be an upcoming issue. For example,


Joseph Kony from the Uganda situation has multiple charges of both war crimes and crimes against humanity for the same substantive offences such as rape and murder. It is urged that the International Criminal Court adopt a more nuanced, materially distinct elements

test, such as the one suggested within, to ensure fairness to the accused and enhance the conceptual soundness of international criminal law.

CUMULATIVE CONVICTIONS IN INTERNATIONAL CRIMINAL LAW: RECONSIDERATION OF A SEEMINGLY SETTLED ISSUE

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