A. Introduction
1. In addressing cumulative charges
and multiple convictions based on the same facts in this case, the Chamber
has relied on the test articulated by the Appeals Chamber Judgement in Musema,
which permits cumulative convictions when the different crimes have mutually
distinct elements. [799]
For the reasons set out in this separate opinion, I do not entirely agree
with this approach. 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 has different elements, the practical result is that inter-article
cumulative convictions for the three crimes in the Statute are always possible
without any legal obstacle.
2. As a result,
for reasons of apparent ideal concurrence of offences explained below, I would
not enter a conviction either for extermination as a crime against humanity
(Count 5), or for serious violations of Common Article 3 (Counts 7 and 13).
3. In the jurisprudence
of the Tribunal and of the ICTY, the terms “crime” and “offence” are employed
interchangeably to mean either the legal description of the crime or the factual
occurrence of the prohibited behaviour or results. To avoid confusion, I will
use the term “criminalisation” to denote the legal definition of the crime.
4. In this separate opinion I
use the terms “ideal concurrence” and “real concurrence”, which are well understood
in civil law systems and which have been incorporated into the jurisprudence
of the Tribunals. Real concurrence of offences arises when the accused commits
more than one crime, either by violating the same criminalisation a number
of times, or by violating a number of different criminalisations by separate
acts. Apparent real concurrence may arise when a series of separate, but closely
related, acts fulfil all the elements of a certain criminalisation, but are
considered as a single, albeit continuing, crime. Ideal concurrence refers
to the situation whereby a single act or factual situation violates more than
one criminalisation. [800] Apparent ideal concurrence of offences
arises when a relationship of concurrence is resolved by the application of
further analytical methods.
B. The Formal
Approach to Ideal Concurrence: Jurisprudence of the Two Ad Hoc Tribunals
5. A review of the jurisprudence
of both this Tribunal and the ICTY reveals that the question of cumulative
convictions for ideal concurrence of offences has troubled trial chambers
since the first cases and that the Tribunals’ response has been far from uniform.
This review will also demonstrate that there have been definite shifts in
legal approaches in addressing these concerns. In the first Judgements, the
ICTR limited the cumulation of convictions, [801] while the ICTY addressed cumulation only
as a matter of sentencing. [802]
In a second phase of development, the ICTY Appeals Chamber limited cumulation
by applying a reciprocal speciality test. [803] This test was then adopted
and applied by the ICTR Appeals Chamber.
[804] In what I view as a third phase of development, the ICTY Appeals
Chamber then warned that the reciprocal speciality test may not sufficiently
address the adverse effects of cumulation of convictions in all circumstances.
[805] I accept this conclusion and propose that additional substantive
tests be considered.
6. From its first case, Akayesu,
the Tribunal recognised that multiple convictions based on the same facts
should be limited because of the potential prejudice to an accused. The Trial
Chamber held that, in light of the prohibition against multiple jeopardy,
multiple convictions for the same conduct are generally impermissible. [806] In order to limit the accumulation
of multiple convictions, the Trial Chamber set forth three circumstances where
multiple convictions on the same facts are permissible: (1) where the offences
have different elements; or (2) where the provisions creating the offences
protect different interests; or (3) where it is necessary to record a conviction
for both offences in order fully to describe what the accused did. [807] Multiple convictions, however, are not
permissible when one offence is a lesser included offence of another, or when
an accused is charged as a principal and as an accomplice in the commission
of the same crime. [808]
7. In the Kayishema and Ruzindana
Judgement, the majority of the Trial Chamber, Judge Khan dissenting, narrowed
the Akayesu test by eliminating the need to consider the full description
of the criminal conduct, and retaining the two other criteria. Pursuant to
this approach, cumulative convictions were permitted where the offences have
different elements or where the laws protect different social interests. [809] The Chamber specifically considered the cumulation of convictions
for genocide and extermination as a crime against humanity and found that
the legal elements of genocide generally differed from those of crimes against
humanity, but that the violation of both may overlap in a particular factual
scenario. [810] In the
circumstances of the case, the Chamber found that genocide overlapped with
murder and extermination as crimes against humanity because the same evidence
established both counts. [811] Accordingly, the social
interest protected by the three crimes was identical, and the elements were
the same. [812] Murder and extermination as crimes against
humanity were “subsumed” by the genocide, making all three the “same offence”. [813] In such circumstances,
concurrent convictions for all three crimes would be improper, untenable,
and would amount to convicting twice for the same offence.
[814]
8. In his dissenting opinion,
Judge Khan considered that the cumulation of convictions for the same factual
conduct was permissible, and that the consequence of concurrence of convictions
should be considered only at sentencing. [815] He noted that while national courts differ,
the international jurisprudence has consistently approached this question
as one of sentencing. [816]
9. The Khan dissent followed
a series of ICTY decisions and judgements, based on an early Tadic
preliminary motion decision, which concluded that multiple charges and convictions
based on ideal concurrence of crimes are generally permissible because cumulative
convictions are at all relevant only “if and when matters of penalty fall
for consideration.” [817] According to the Tadic
approach, the Prosecutor has wide discretion to charge multiple counts, either
alternatively or cumulatively, for the same alleged conduct. The logical conclusion
is that an accused may be convicted for multiple counts based on the same
facts, but that the sentence will reflect the criminal conduct of the accused,
rather than the “technicalities of pleading”. [818]
10. The trial Judgements in Rutaganda and Musema
agreed that it is permissible to convict an accused of two or more offences
for the same conduct under certain circumstances. The Trial Chamber reiterated
the Akayesu findings and concluded that the offences in the Statute
have “disparate ingredients” and are aimed at protecting discrete interests. [819] At the same time, both Judgements endorsed
the dissenting opinion of Judge Khan, particularly in relation to the importance
of cumulative convictions in capturing the full extent of the crimes. [820]
11. In Celebici, the Appeals Chamber departed
from the permissible approach adopted by a number of Trial Chambers, recognising
that, for reasons of fairness to the accused, only distinct crimes may justify
multiple convictions. [821]
The Appeals Chamber concluded that cumulative convictions for ideal concurrence
of crimes are permissible when they have materially distinct elements (the
test of reciprocal speciality). [822] The Appeals Chamber found that it was not
permissible to convict for the same violation for war crimes under Article
3 of the ICTY Statute and for violations of Geneva Conventions under Article
2 of that Statute because they do not have materially distinct contextual
elements. [823] In such a case, the Appeals
Chamber applied the principle of specificity, so that the more specific criminalisation
applies. [824] The Musema Appeals
Judgement adopted this test. [825]
12. However, even as the Appeals Chamber adopted the
reciprocal speciality test in the Celebici judgement, two of the five
judges on the panel considered that this approach was problematic. [826] Judges Hunt and Bennouna reasoned from
the premise that, as a matter of principle, cumulative convictions for the
same conduct should be avoided because they cause unjust prejudice to the
accused. [827] They agreed
that multiple convictions for the same conduct may be permissible when the
competing criminalisations have mutual distinct material elements.
[828] In the minority’s opinion, however, this determination should be
limited to the legal description of the accused’s conduct (actus reus
and mens rea), and should not focus on the contextual (legal prerequisite
or chapeaux) elements of the crimes, because these general provisions bear
no relevance either to the culpable conduct of the accused or to the victims.
[829]
13. In the Kunarac case, the ICTY Appeal Chamber
upheld the reciprocal speciality test adopted by the Celebici Appeals
Judgement, applying it also to ideal concurrence of war crimes under Article
3 and crimes against humanity under Article 5 of the ICTY Statute. [830] However, the Appeals Chamber
cautioned that the test is “deceptively simple”, and that it is difficult
to apply in a way that is “conceptually coherent and promotes the interests
of justice.” [831] The Appeals Chamber recognized
that cumulative convictions create a real risk of prejudice to the accused
that is not cured by concurrent sentencing.
[832] The Appeals Chamber concluded that the permissibility of multiple
convictions ultimately turns on the intentions of the lawmakers, and found
that the Security Council desired that all species of the crimes be “adequately
described and punished”. [833]
14. In my view, the jurisprudence of both ad hoc Tribunals establishes
that, in principle, multiple convictions based on the same facts should be
limited because of the risk of prejudice to the accused. Various chambers
have articulated different tests intended to serve this limiting purpose.
The reciprocal speciality approach, articulated in the Appeals Chamber Judgements
in Celebici and Musema, is based on this very concern. However,
in practice, this test does not really provide any limiting effect. I believe
that this is the issue addressed by the Kunarac Appeals Chamber in
its warning against a mechanical application of the test.
15. In my opinion, this dilemma is even more evident
in the context of this Tribunal, insofar as each of the three sets of crimes
in the ICTR Statute, genocide, crimes against humanity, and serious violations
of Common Article 3 and Additional Protocol II, has different contextual elements.
It must be recalled that the Celebici test was developed in response
to multiple convictions based on Articles 2 and 3 of the ICTY Statute. Absurdly,
the test created to limit multiple convictions at the ICTY results
in blanket permission for inter-article cumulation of convictions at the ICTR,
which only has a single war crimes article. In the Musema Judgement,
the Appeals Chamber declined to confirm this obvious effect, which results
from abandoning the more restrictive Akayesu approach in favour of
the Celebici reciprocal speciality test. [834]
16. This problem is exacerbated by the factual context of the crimes committed
in Rwanda in 1994, where genocide, consisting of widespread and systematic
attacks against Tutsi civilians, overlapped with armed conflict. In such circumstances,
the very same factual context will necessarily satisfy all of the contextual
elements of each of the three crimes. Thus, virtually every criminal act could
be classified as a violation of three different contextual provisions.
17. In my view, such results are not consistent with basic principles of
law. Logically, and pursuant to the civil law principle of ultima ratio,
a lawmaker should repress socially harmful conduct or results through a single
criminalisation only as a last resort. It is also an elementary principle
of justice that an accused should be punished for his criminal conduct only
once. To achieve this objective, the lawmaker should exclude from the legal
description of the crime those particulars which may occur in specific cases
but are not significant for the definition of the socially dangerous behaviour.
18. In this regard, I disagree with the conclusion that
it was the intention of the Security Council to permit cumulative convictions.
[835] The Statute is not a premeditated criminalisation of contemporary
international criminal law, which evidences a desire to enable cumulative
convictions for ideal concurrence of crimes; rather the Statute is an often
awkward and overlapping assembly of three formerly independent crimes into
a single Statute. [836]
If the intention of the authors of the Statute was to permit cumulative convictions,
contrary to the ordinary principles of logic, rationality, and justice, then
this intention should have been clearly indicated. Moreover, if the Security
Council really intended to permit cumulative convictions in order to reflect
the totality of a perpetrator’s criminal conduct, then this objective is not
achieved by concurrent sentencing for multiple convictions based on the same
facts. [837]
19. Moreover, to dissect the complex factual circumstances of the Rwandan
conflict in order to satisfy distinct contextual elements for the purposes
of multiple convictions interferes with the principle that the verdict and
sentence should reflect the totality of the accused’s criminal conduct.
In my view, it is more appropriate to consider these events, and an accused’s
participation in them, as a complete whole. Integral facts which do not directly
satisfy an element of the selected crime may constitute aggravating circumstances.
It serves no purpose, in my view, to convict an accused, on the basis of a
single act, for genocide, crimes against humanity, and war crimes,
for the sole purpose of demonstrating the three facets of the contextual situation.
C. Substantive
Approach to Ideal Concurrence
20. I believe that the concept of ideal concurrence of
crimes is well understood, notwithstanding certain terminological differences
between legal systems. Ideal concurrence of crimes may result in multiple
convictions and penalties for the same conduct, which runs contrary to elementary
principles of justice and may prejudice the accused. In particular, multiple
convictions for the same conduct unfairly stigmatises an accused and may have
adverse collateral consequences, such as increasing the sentence or diminishing
the accused’s eligibility for parole. [838]
21. The Celebici/Musema test takes a formal approach to ideal concurrence
of offences, grammatically analysing the elements of the legal definitions
of crimes, including the contextual elements, in the abstract. This approach
fails to consider the importance of the apparently different elements, either
in relation to the events in Rwanda or in the particular circumstances of
the case. Such an approach cannot achieve an accurate assessment of whether
the criminal definitions are really distinct. Since the expressed purpose
of the Celebici/Musema test is to limit cumulative convictions to genuinely
distinct crimes, I am of the view that the test is insufficient to achieve
this purpose.
22. Therefore, I propose to articulate a more substantive
analysis. In doing so, I have reasoned from the premise, already accepted
in the jurisprudence of the Tribunal, that the verdict must fully reflect
the entire culpable conduct of the accused. Cumulative convictions which exceed
this objective are therefore unsound. Cumulative convictions, while theoretically
permissible, should not be the norm; rather cumulative convictions based on
ideal concurrence of offences should be the exception.
23. In principle, I agree that the starting point of
the analysis should be a comparison of the different elements of the crimes
in order to determine reciprocal speciality. I further agree that the contextual
elements should be considered as part of this analysis. However, I believe
that this comparison must include a substantive assessment of whether the
contextual elements of each article are of such significance that they considerably
change the nature or gravity of the crimes in question and therefore justify
cumulative convictions for the ideal concurrence of crimes under several articles.
[839] This additional criterion is particularly useful in the circumstances
of Rwanda. As already noted, most culpable conduct in Rwanda in 1994 was committed
in circumstances which fulfilled the contextual requirements of all three
sets of crimes.
24. The tools for this substantive analysis are already
present in the jurisprudence of the Tribunals. For example, the principle
of consumption (lex consumens derogat legi consumptae) could also be
applied as an additional method to determine the propriety of cumulative convictions
for ideal concurrence. [840] Consumption refers to relationships
between offences of the same kind, but of considerably different gravity,
that are designed to protect the same or closely related social interests,
but which differ in relation to particular elements. In such circumstances,
the more grave crime consumes the lesser crime. Similarly, the more serious
forms of participation consume the less serious forms, so that the direct
commission of a crime would consume instigation or assistance and even forms
of superior responsibility.
25. Subsidiarity, which has also been applied by both
the ad hoc Tribunals, may also be useful in identifying circumstances of apparent
ideal concurrence. [841] Pursuant to the principle lex primaria derogat legi subsidiariae,
a less authoritative or “inferior” criminalisation only applies when the
competing “superior” criminalisation is not applicable. This type of relationship
may be expressly provided, for example by the use of “if not otherwise provided”
or “other… acts”, or may be inferred from the nature of the competing criminalisations.
26. The principle of inclusion may also provide some further assistance
in certain circumstances. Where an accused’s conduct violates two or more
substantially different criminalisations, but where it would be unreasonable
to render cumulative convictions because of the insignificance of the lesser
crime, the principle of inclusion permits the less serious crime to be included
in the more serious crime.
D. Application of the Substantive Approach to the Facts
27. In my view, genocide is a more specific crime than crimes against humanity
or serious violations of Common Article 3 and Additional Protocol II. Accordingly,
applying the principles of speciality and subsidiarity to competing criminalisations
in ideal concurrence, the crimes constituting genocide should prevail over
both of the other competing sets of crimes.
28. When faced with a situation of ideal concurrence of the accused’s conduct
that also fulfils all the contextual elements of all three sets of crimes,
I would thus enter a conviction for only genocide. By comparing the significance
of the contextual elements of the three crimes, I consider that the genocidal
purpose, to destroy a particular group of people on discriminatory grounds,
is more important, stigmatizing, and far-reaching than the contextual elements
of the other two crimes. In the context of Rwanda, genocide consumes crimes
against humanity in relation to the same factual conduct committed on the
same discriminatory grounds against the same civilian population. Genocide
and crimes against humanity consume serious violations of Common Article 3
and Additional Protocol II based on the same facts committed against the same
civilian population, because the link between the acts of the Accused and
the armed conflict is of considerably less significance than the genocidal
intent, or the widespread or systematic discriminatory attack against civilians.
29. In the present case, the Accused has been charged with six crimes based
on identical allegations of criminal conduct at four massacre sites. The Chamber
has found that he is criminally responsible for complicity in genocide (Count
3) and for aiding and abetting extermination (Count 5) on the basis of the
same facts. The majority, relying on reciprocal speciality test in Musema,
considers that inter-article ideal concurrence in this case is appropriate
and finds the Accused responsible for both crimes. In my opinion, the genocidal
contextual elements in Count 3 consume the reciprocally specific contextual
elements of extermination as a crime against humanity in Count 5, because
in the circumstances of this case, the genocide was the widespread discriminatory
attack. I therefore would not enter a conviction for Count 5, because it is
in apparent ideal concurrence with Count 3.
30. For the same reasons, I would not enter a conviction for violations
of Common Article 3 at the massacre sites (Count 7) because, in the factual
circumstances of this case, the genocide was linked to the armed conflict
and the Accused’s conduct at the site is fully described by Count 3. I also
consider that the violations of Common Article 3 (Count 13) are in apparent
ideal concurrence with the convictions for rape, torture, and murder as crimes
against humanity (Counts 10, 11, 12). Accordingly, I do not support a conviction
for Count 13.
E. Apparent
Real Concurrence of Crimes
31. Finally, I wish to address the issue of apparent real concurrence of
crimes. Although I do not disagree with any part of the Judgement on this
issue, I wish to express my opinion in order to highlight the importance of
apparent real concurrence of crimes for future indictments and judgements.
32. The most common example of apparent real concurrence is a continuing
offence, where each act in a series of separate but closely related acts fulfils
all the elements of a certain criminalisation. In such circumstances, it is
possible to regard the entire transaction, or series of repeated crimes, as
a single crime. For these acts to be joined together, certain linking elements
should be taken into account, such as the repetition of the same kind of crimes,
the uniformity of the perpetrator’s intent, the proximity in time between
the acts, the location, the victim or class of victims, the object or purpose,
and the opportunity. The construction of continuous offences is especially
important in relation to the international crimes in our Statute, particularly
in light of the nature of mass violations of basic human rights in Rwanda
during a relatively short period of time.
33. In the Indictment, however, the Prosecutor has manipulated
the principle of apparent real concurrence for no obvious purpose. For his
participation in four separate massacres, the Accused is charged with eight
separate counts, six based solely on the general massacres and two other counts
based, in part, on his participation in the torture and murder of Rusanganwa.
From the construction of the six general counts, it is obvious that the Prosecutor
considers all four massacres as one continuing event, despite the fact that
the Indictment alleges different forms of participation and different types
of crimes, committed against multiple victims, at different times and locations.
The Chamber accepts that in this case, the Accused’s actions at all four massacres
form a single crime. I agree with this conclusion, which is based on the linking
elements enumerated above and in the Judgement. [842]
34. However, the charges of torture and murder as crimes against humanity
in Counts 11 and 12 are less obvious, because they join two otherwise unrelated
events involving different forms of participation against different victims
at different sites: namely, the torture and murder of Rusanganwa on 13 April
1994 at Musha Church, and the instigation to rape and kill Tutsi women on
the same day in Gikoro Commune.
[843] These counts of torture and murder join these two separate underlying
crimes without any indication of the Prosecutor’s justification for this linkage.
While charging is, in principle, a matter within the discretion of the Prosecutor,
this discretion cannot be used in an arbitrary, illogical, or unfair manner.
In my view, the Prosecutor’s failure to logically organise and define the
scope and nature of the counts in an indictment may result in prejudice to
an accused, who must then organise his defence in response to a confusing
and illogical indictment. In my view, such arbitrary charging is unsatisfactory
and should not be permitted in the future.
F. Conclusion
35. For the foregoing reasons, I would not enter
a conviction for Counts 5, 7, or 13. Since the totality of the Accused’s criminal
conduct is already reflected in the remaining convictions, this acquittal
would not affect the Accused’s sentence.
Done in English and French, the English text being authoritative.
Arusha, 15 May 2003.
Pavel Dolenc
Judge
(Seal of the Tribunal)
[799] Semanza, Judgement and Sentence, (“Judgement”) paras. 408, 409, citing Musema,
Judgement, AC, paras. 361, 363, 369.
[800] Kupreskic, Judgement, TC, paras. 662.
[801] See, e.g., Musema, Judgement, TC, paras. 289-299; Rutaganda, Judgement,
TC, paras. 108-119; Kayishema and Ruzindana, Judgement, TC,
paras. 625-650; Akayesu, Judgement, TC, paras. 461-470.
[802] See, e.g., Furundzija, Judgement,
TC, paras. 292, 296; Celebici, Judgement, TC, para. 1286; Prosecutor v. Tadic, Decision on
Defence Motion on Form of the Indictment, IT-94-1-T, TC, 14 November 1995.
[803] Celebici, Judgement, AC, para. 412.
[804] Musema, Judgement, AC, paras. 361, 363.
[805] Kunarac, Judgement, AC, paras. 168-198.
[806] Akayesu, Judgement, TC, para. 462.
[807] Akayesu, Judgement, TC, para. 468.
[808] Akayesu, Judgement, TC, para. 468.
[809] Kayishema and Ruzindana, Judgement, TC, para. 627.
[810] Kayishema and Ruzindana, Judgement, TC, para. 636.
[811] Kayishema and Ruzindana, Judgement, TC, para. 647.
[812] Kayishema and Ruzindana, Judgement, TC, paras. 641-643.
[813] Kayishema and Ruzindana, Judgement, TC, para. 648.
[814] Kayishema and Ruzindana, Judgement, TC, paras. 649-650.
[815] Kayishema and Ruzindana, Judgement, Separate and Dissenting
Opinion of Judge Tafazzal Hossain Khan Regarding the Verdicts Under the
Charges of Crimes Against Humanity/Murder and Crimes Against Humanity/Extermination,
TC, para. 6.
[816] Kayishema and Ruzindana, Judgement, Separate and Dissenting
Opinion of Judge Tafazzal Hossain Khan Regarding the Verdicts Under the
Charges of Crimes Against Humanity/Murder and Crimes Against Humanity/Extermination,
TC, paras. 12, 23.
[817] Prosecutor v. Tadic, Decision on Defence
Motion on Form of the Indictment, IT-94-1-T, TC, 14 November 1995, para
17. See also Celebici, Judgment, TC, para. 1268.
[818] Prosecutor v. Tadic, Decision on Defence Motion on Form of
the Indictment, IT-94-1-T, TC, 14 November 1995, para. 17.
[819] Musema, Judgement, TC, para. 297; Rutaganda, Judgement, TC, para. 117.
[820] Musema, Judgement, TC, para. 296; Rutaganda, Judgement, TC, para. 116.
[821] Celebici, Judgement, AC, para. 412.
This test has been affirmed and applied in subsequent ICTY cases. See,
e.g., Kupreskic, Judgement, AC, paras. 385-388;
Jelisic, Judgement, AC, para. 82; Vasiljevic, Judgment, TC,
paras. 265-266; Krnojelac, Judgement, TC, paras. 502-503; Kvocka,
Judgement, TC, paras. 213-215; Krstic, Judgement, TC, para.
664; Kordic and Cerkez, Judgement, TC, para. 814-818; Kunarac,
TC, paras. 549-552.
[822] Celebici, Judgement, AC, para. 412.
[823] Celebici, Judgement, AC, paras. 423-427.
[824] Celebici, Judgement, AC, para. 413.
[825] Musema, Judgement, AC, paras. 361, 363.
[826] Celebici, Judgement, Separate and Dissenting Opinion of Judge
David Hunt and Judge Mohamed Bennouna, AC.
[827] Celebici,
Judgement, Separate and Dissenting Opinion of Judge David Hunt and Judge
Mohamed Bennouna, AC, paras. 22, 23 (considering the prejudice of
“the punishment and social stigmatization inherent in being convicted
of a crime” and the impact on sentence, parole, early release, risk of increased
sentence for subsequent convictions in another jurisdiction (emphasis in
original)).
[828] Celebici, Judgement, Separate and Dissenting Opinion of Judge
David Hunt and Judge Mohamed Bennouna, AC, para. 24.
[829] Celebici,
Judgement, Separate and Dissenting Opinion of Judge David Hunt and Judge
Mohamed Bennouna, AC, paras. 25-27, 33. See also Kupreskic,
Judgement, TC, para. 699 (“In order to apply the principles on cumulation
of offences set out above specific offences rather than diverse sets
of crimes must be considered.” (emphasis in original)).
[830] Kunarac, Judgement, AC, paras. 168-198.
[831] Kunarac, Judgement, AC, para. 172.
[832] Kunarac, Judgement, AC, para. 169.
[833] Kunarac, Judgement, AC, para. 178.
[834] Musema, Judgment, AC, para. 368.
[835] See, e.g., Kunarac, Judgement, AC, para. 178.
[836] See Celebici, Judgement, Separate and Dissenting Opinion
of Judge David Hunt and Judge Mohamed Bennouna, AC, paras. 21, 27.
[837] If the single act is committed in a context which results in three
separate convictions under each of the three crimes in the Statute, the
result will, in most cases, be three concurrent sentences. In my view, this
approach results in more lenient sentences and fails to reflect the totality
of the context, since each of the sentences is assigned in ignorance of
the other two crimes. For example, one sentence will reflect the accused’s
conduct in connection with the armed conflict, another sentence will reflect
his conduct as part of the widespread attack, and the third will reflect
his conduct as part of the genocide; no single concurrent sentence will
reflect the totality of his conduct within the total context. On the other
hand, if the factual and contextual circumstances are considered in their
totality, resulting in a single appropriate conviction and sentence, then
all relevant circumstances would be reflected in both the verdict and the
sentence.
[838] See, e.g., Celebici, Judgement, Separate and Dissenting
Opinion of Judge David Hunt and Judge Mohamed Bennouna, AC, paras.
22, 23.
[839] See, e.g., Celebici, Judgement, Separate and Dissenting
Opinion of Judge David Hunt and Judge Mohamed Bennouna, AC, para. 18 (“However,
we do not believe that the interests identified by the Prosecution are so
genuinely different that they justify cumulative convictions for
otherwise identical criminal conduct.”) (emphasis added).
[840] See, e.g., Kunarac, Judgement, AC, para. 170; Kupreskic,
Judgement, TC, para. 688.
[841] See, e.g., Kvocka, Judgement, TC, para. 228 (finding
that other inhumane acts under Article 5(i) a have a subsidiary nature).
[842] Judgement, para. 508. Although the notion of the “transaction” defined
in Rule 2 is not identical to the concept of a continuing offence, the same
linking elements may be useful in determining whether a series of crimes
is a continuing offence.
