1. Background
544. The issue of cumulative convictions centres on the question whether an accused may be convicted of more than one offence for the same conduct.
545. With respect to the present case, in several instances the accused are charged with more than one offence under a single Article, like torture and rape under Article 5 of the Statute, based on the same conduct. The accused are also charged with offences under two Articles, like torture under Article 5 and torture and/or rape under Article 3 of the Statute, again based on the same conduct.
546. The Prosecutor submits that an accused may be indicted, convicted and sentenced on cumulative charges emanating from the same conduct under the following circumstances:
where the offences have different elements; where the provisions creating the offences protect different interests; or where it is necessary to record a conviction for both offences in order to fully describe what the accused did.1345 The Defence submits that an accused cannot be indicted and convicted for more than one offence for the same act.1346
547. Although the Appeals Chamber in the Delali} case rendered its judgement only very recently,1347 this Trial Chamber applies the approach of the majority in that judgement to the issue of cumulative convictions, without the assistance of the parties, in the present case.
2. The law (a) Cumulative charges
548. The Appeals Chamber in the Delali} case held that cumulative charging is to be allowed.1348 The primary reason is that it is impossible for the Prosecutor to determine with certainty, prior to the presentation of all the evidence, which of the charges brought against
1345 Ibid, par 926.
1346 Defence Final Trial Brief, pars N.1.2, N.2.1 and N.4.6.
1347 Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001.
1348 Ibid, par 400.
an accused will be proved. A Trial Chamber is in a better position, after the parties’
presentation of the evidence, to evaluate which charges should be retained.1349 (b) Cumulative convictions
(i) The approach laid down by the Appeals Chamber in the Delali} case
549. The Appeals Chamber in the Delali} case held that cumulative convictions are permissible only in certain circumstances.1350 It is worth quoting the relevant section of that judgement in full:
412. […] [t]his Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.
413. Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.1351
550. Accordingly, once all the evidence has been assessed, before deciding which convictions, if any, to enter against an accused, a Trial Chamber first has to determine whether an accused is charged with more than one statutory offence based upon the same conduct. Secondly, if there is evidence to establish both offences, but the underlying conduct is the same, the Trial Chamber has to determine whether each relevant statutory provision has a materially distinct element not contained in the other. This involves a comparison of the elements of the relevant statutory provisions – the facts of a specific case play no role in this determination. Thirdly, if the relevant provisions do not each have a materially distinct element, the Trial Chamber should select the more specific provision.
551. As to the impact that cumulative convictions based on the same conduct will have on sentencing, the Appeals Chamber in the Delali} case held that it must be ensured that the final or aggregate sentence reflects the totality of the criminal conduct and overall
1349 Ibid.
1350 Ibid, pars 412-413.
1351 Ibid.
culpability of the offender.1352 The prejudice that an offender will or may suffer because of cumulative convictions based on the same conduct has to be taken into account when imposing the sentence.
(ii) The application of the identified approach to the present case
552. The Appeals Chamber in the Delali} case dealt with the matter of cumulative convictions in the context of Articles 2 and 3 of the Statute. This Trial Chamber considers the approach identified in that judgement must also be applied in the present case, which relates to Articles 3 and 5 of the Statute. It would be inappropriate to apply different approaches to different cumulations of charges.
553. The Prosecutor charges Dragoljub Kunarac for torture under Articles 5 and 31353 and for rape under Articles 5 and 3, based upon the same criminal conduct.1354 She also charges Dragoljub Kunarac and Radomir Kova~ with enslavement under Article 5 and outrages upon personal dignity under Article 3 based upon the same conduct.1355 Based upon the same criminal conduct, Zoran Vukovi} has been indicted under Articles 5 and 3 on counts of torture and counts of rape.1356
554. The Prosecutor does not submit that convictions for rape and enslavement under Article 5 based on the same conduct should be entered against the accused. The alleged repeated violations of the sexual integrity of the victims, by various means, is one of the main factors to be considered when determining whether enslavement was committed.1357 She states that
The main characteristic of the enslavement exercised by the accused Kunarac and Kova~
was the sexual exploitation of the girls and women. All the controls exerted served that purpose. Repeated violations of the victim’s sexual integrity, through rape and other sexual violence, were some of the most obvious exercises of the powers of ownership by the accused.1358
1352 Ibid, pars 429 and 430.
1353 Prosecutor’s Final Trial Brief, par 925 and fn 1979 (Counts 1 and 3 and 5 and 7 of Indictment IT-96-23).
1354 Prosecutor’s Final Trial Brief, par 925 and fn 1979 (Counts 1 and 3 and 5 and 7 of Indictment IT-96-23).
1355 Prosecutor’s Final Trial Brief, par 925 and fn 1981 (Counts 18 and 21 of Indictment IT-96-23).
1356 Prosecutor’s Final Trial Brief, par 925 and fn 1982 (Counts 21 to 24 of Indictment IT-96-23/1). The Trial Chamber considers that the Prosecutor mistakenly left out a reference to Counts 33-36 in this context.
1357 Prosecutor’s Final Trial Brief, pars 800-807.
1358 Prosecutor’s Final Trial Brief, par 801.
Furthermore, with regards to rape and outrages upon personal dignity, the Prosecutor charges rape and outrages upon personal dignity separately in this case, although, in her view, rape clearly could have and has been classified as an outrage upon personal dignity.1359 In view of these submissions, the cumulative convictions problem in relation to rape and enslavement and rape and outrages upon personal dignity does not arise, because these charges are not based on the same conduct.
555. Having regard to the Indictments and the Prosecutor’s submissions, what is to be determined here, therefore, are the following questions. First, would convictions for an Article 3 offence and an Article 5 offence, based on the same conduct, be permissible?
Secondly, would convictions for rape and torture under one Article based on the same conduct be permissible?
a. Convictions under Articles 3 and 5 of the Statute
556. Applying the approach adopted by the Appeals Chamber in the Delali} case, convictions for both an Article 3 offence and an Article 5 offence based on the same conduct would be permissible. That is so because each Article has at least one materially distinct element that does not appear in the other. A materially distinct element in Article 3 vis-à-vis Article 5 is the nexus requirement, which holds that there must be a close link between the acts of an accused and the armed conflict.1360 A materially distinct element in Article 5 vis-à-vis Article 3 is the requirement of a widespread or systematic attack directed against a civilian population. In other words, regardless of the enumerated or specific offences charged under Articles 3 and 5, convictions under both Articles based on the same conduct will be permissible. With reference to the present case, convictions based on the same conduct would be permissible: convictions for rape under both Articles; convictions for torture under both Articles; convictions for enslavement under Article 5 and outrages upon personal dignity under Article 3; convictions for rape under Article 5 and torture under
1359 Prosecutor’s Final Trial Brief, par 772.
1360 Prosecutor’s Final Trial Brief, pars 690-696; Prosecutor’s Pre-Trial Brief I, pars 98-105; Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 70 (“closely related”); Prosecutor v Delali} and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, pars 193 (referring to an “obvious link”, “closely related”), 197 (“clear nexus”) and 295.
This nexus requirement was not considered in Prosecutor v Kupre{ki} and Others, Case IT-95-16, Judgement, 14 Jan 2000, pars 699 et seq.
Article 3; convictions for rape under Article 3 and torture under Article 5; and convictions for enslavement under Article 5 and rape under Article 3.
b. Torture and rape under Articles 3 or 5 of the Statute
557. Applying the approach adopted by the Appeals Chamber in the Delali} case, convictions for rape and torture under either Article 3 or Article 5 based on the same conduct would be permissible. Comparing the elements of rape and torture under either Article 3 or Article 5, a materially distinct element of rape vis-à-vis torture is the sexual penetration element. A materially distinct element of torture vis-à-vis rape is the severe infliction of pain or suffering aimed at obtaining information or a confession, punishing, intimidating, coercing or discriminating against the victim or a third person.