Cumulative convictions in international criminal law: reconsideration of a seemingly settled issue.

AuthorErdei, Ildiko

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 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 Celebiri 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 Celebici test and its interpretation in cases of interarticle 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 Celebidi test that prohibits consideration of contextual elements and incorporates the hierarchy of offenses is then proposed.

  1. 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 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, ie., 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.

    1. Ne his 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 his in idem is broader, protecting "the person from repeated prosecution or punishment for the same conduct, 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 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 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...

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