1. With respect to the appeal by the prosecution, I agree with the judgement of the Appeals Chamber that the Trial Chamber erred in acquitting the respondent at the close of the case for the prosecution on the ground that the evidence was insufficient to sustain a conviction (“mid-trial acquittal”), but dissent in so far as, having so held, it declined to reverse the acquittal and to remit the case for a continuation of the proceedings, including a fresh hearing by a recomposed bench if the previous bench could not be brought together. With respect to the cross -appeal, I agree with the judgement of the Appeals Chamber but propose to state my views on an aspect of it which concerns the subject of cumulative convictions .

THE PROSECUTION’S APPEAL

2. Was the decision of the Trial Chamber to make a mid-trial acquittal erroneous? If it was, should the case be remitted for further proceedings? There are four points which I would like to notice.

3. The first point is this: As is recalled in the judgement of the Appeals Chamber, the question of the correct test to be applied under Rule 98bis(B) of the Tribunal’s Rules of Procedure and Evidence was settled by the Appeals Chamber in Delalic ¹. In that case, a ground of appeal was “that the evidence was not what was described as legally sufficient to sustain the convictions”²; thus, the question what was the correct test to be applied was a matter that fell for determination. The Appeals Chamber is not legally bound by its previous decisions (including one as to following its previous decisions) but will in practice follow them unless there is cause for a departure. I do not think that this is at variance with the essence of the established position, but, if it is, it is my view and I adhere to it in this individual opinion. The question then is whether Delalic should now be departed from on the ground that it overlooked a consideration that the jurisprudence on which it relied developed largely, though not wholly, in jury systems, whereas Judges of the Tribunal decide both fact and law.

4. A submission to similar effect was made in relation to magistrates by the learned editors of Archbold, Criminal Pleading, Evidence and Practice. I refer to that and other material from a particular jurisdiction only because it appears to me that they reflect an experience of the law which is helpful to this analysis. The relevant text, as carried forward in paragraph 4-296 of the issue of that work for the year 2000, ran:
In their summary jurisdiction magistrates are judges both of facts and law. It is therefore submitted that even where at the close of the prosecution case, or later, there is some evidence which, if accepted, would entitle a reasonable tribunal to convict, they nevertheless have the same right as a jury to acquit if they do not accept the evidence, whether because it is conflicting, or has been contradicted or for any other reason. It is submitted that the Practice Note [1962] 1 All E.R.448 must be read in this light. It is submitted that the test set out therein equates with what was said in Galbraith, expressed in terms appropriate to summary proceedings.

That text was before a court in the year 1994. Referring to the rule that questions of credibility are normally not for the court when determining a no case submission, a judge in that case observed that the rule is “also applicable to situations arising at the close of the prosecution case in summary proceedings , where the court has to consider whether there is a case to answer”.³ This would seem to leave intact the general rule prohibiting magistrates from deciding a no case issue as if they were making definitive findings of guilt or innocence .

6. The general rule on this point, as set out in the 1962 Practice Note (referred to in the Archbold text), reads:⁴

A submission that there is no case to answer may properly be made and upheld: (a ) when there has been no evidence to prove an essential element in the alleged offence ; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.

Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.

7. This direction was given to magistrates who, of course, do not sit with juries, and so, in that respect, are, like Trial Chambers of the Tribunal, triers of both fact and law. Presumably it was followed by them. The direction has since been qualified in some respects⁵, particularly as regards trials before judge and jury, but I agree with a view that its broad thrust remains.

8. To be sure, there are plain cases in which the members of the bench might say “that there is nothing in the case and that they do not want to hear any more of it”.⁶ In such cases the court is indeed making a decision as to the credit to be given to the testimony, but, as indicated in the 1962 Practice Note, it may do so only where the testimony has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from such exceptions , it would appear that magistrates are generally prohibited from deciding on guilt or innocence on a no case submission.

9. There is, however, merit in the view that, since “(m(agistrates are judges of both fact and law”,

in borderline cases, it may be thought pedantic to require them to go through the motions of hearing defence evidence if they have found the prosecution evidence so unconvincing that they will not convict on it in any event.⁷

10. It is thought that magistrates do in fact act in this way⁸. Indeed, the possibility that they could do so would seem to have been envisaged by the 1962 Practice Note. On its terms, it is arguable that this did not absolutely prohibit a mid-trial acquittal where the prosecution evidence disclosed evidence which, if accepted, would entitle a reasonable tribunal to convict. As has been observed, what it said was that “the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict”. The words “not so much” would be noted and their implications recognised ; so too with the words “in general”, as referred to in another part of the Practice Note. In addition, it may be observed that the latter does not require magistrates to take the prosecution evidence “at its highest”; this requirement, as it occurs in Galbraith⁹, would seem to oblige a bench, where it sits with a jury, to abstain more strictly from evaluating the evidence and to leave this to the jury.

11. These considerations support the argument that, at the close of the case for the prosecution, a Trial Chamber has a right, in borderline cases, to make a definitive judgement that guilt has not been established by the evidence , even accepting that a reasonable tribunal could convict on the evidence (if accepted ).

12. However, in non-borderline cases, the view which I accept as being right is that, “assuming the necessary minimum amount of prosecution evidence has been adduced so as to raise a case on which a reasonable tribunal could convict , the magistrates should allow the trial to run its course rather than acquitting on a submission”.¹⁰ In effect, in such cases the general rule applies to prohibit magistrates from proceeding as if they were making definitive findings of guilt or innocence.

13. Correctly, the Trial Chamber did not treat the present case as one of plain insufficiency of evidence; nor do I have the impression that it treated the case as a borderline one. So the general rule applied to prohibit it from passing on matters of credit as if it were making definitive findings of guilt or innocence . In a case such as the present one, I do not think it could do that.

14. In particular, it seems to me that (excepting clear cases of insufficiency of evidence, in which the decision goes in favour of the defence) the danger of deciding a no case issue by attempting to adjudicate on guilt at the mid-trial stage is that, if the no case decision went against the accused, he would understandably feel that the Trial Chamber had made a definitive finding of guilt, so that, in his mind, subsequent defence evidence and submissions would be addressed to a court which had already come to a conclusion as to the result of the case. It could not be correct to engender such lack of confidence in the judicial process.

15. For these reasons, while I appreciate the force of the argument that Delalic overlooked the course of jurisprudential development, I do not consider that the argument is sufficiently strong to furnish justification for not following that case in this particular matter.

16. Second, there is the question of the application of the correct test. The Trial Chamber did refer to elements of the prosecution evidence. However , although it sought to make a definitive assessment of the evidence, and assuming that it could do so, it did not refer to possible inferences which a trier of fact might eventually be able reasonably to draw from those elements. For example, in footnote 125 of its judgement, it stated: “Allegedly, these bodies were then loaded into a refrigerated lorry ...while others were thrown into the Sava River...”. The first part of that short footnoted statement referred to evidence that a Bimeks refrigerated lorry was regularly engaged in removing 10 to 20 bodies a day. If that evidence was accepted, its implications had to be taken in conjunction with evidence that the bulk of the people killed belonged to a particular ethnic group against whom there was overwhelming evidence that (as the Trial Chamber in fact found) the respondent had a discriminatory intent on grounds of ethnicity. It would then be open to a reasonable tribunal to find, on the evidence, that lives were being destroyed in a systematic and organised way; that the basis of the system and organisation was that people would be destroyed because they were members of a particular ethnic group; that the respondent, though not proved to be the actual commander of the camp, had de facto authority over prisoners in matters of life and death; that he was seen by them to have such authority; that he understood that they regarded his authority as unquestionable and in fact feared him; that he exercised that authority to implement the liquidation arrangements; and that accordingly his intention was to destroy people as members of an ethnic group. It is not necessary to consider whether he acted alone and what are the legal implications if he did. There was evidence that he was associated with other military personnel, and it was open to a reasonable tribunal to draw an inference that the camp, which was of some size , had been established by others and was being operated by them, and that the accused could not have done what he was alleged to have been doing over a period of time without the sanction of authorities above him.

17. The foregoing relates to elements of the prosecution evidence to which the Trial Chamber referred. However, as today’s judgement makes clear, there were pertinent elements of that evidence to which the Trial Chamber did not refer . Was the Trial Chamber entitled not to refer to this evidence? It did not take the position that the evidence not referred to had been completely destroyed in cross-examination or was manifestly unreliable, and so it is not necessary to examine that view if it had been put forward. The Trial Chamber did not refer to the prosecution evidence in its full extent because it adopted the wrong test. It used only such material as it considered relevant to that test and deprived itself of the benefit of being able to make recourse to a larger pool of material which the right test would have put at its disposal. Had all the available material been used, a reasonable tribunal could not have found that the prosecution evidence (if accepted) was insufficient to sustain a conviction within the meaning of Rule 98bis(B) of the Tribunal’s Rules of Procedure and Evidence.

18. For these reasons and for others given in the judgement of the Appeals Chamber, I agree with the majority holding that the Trial Chamber erred in finding , at the close of the case for the prosecution, that the evidence was insufficient to sustain a conviction and in acquitting on that ground.

19. The third point is whether, notwithstanding its finding that the acquittal was erroneous, the Appeals Chamber has power not to remit the case for a continuation of the proceedings. I think that the power exists.

20. The Prosecutor is of course independent, and consideration has to be given to the question whether her functions are unlawfully compromised by an appellate decision which holds that the case was erroneously stopped by the Trial Chamber but that it is nevertheless not to be remitted for further proceedings. That could be an interesting argument. However, its force is diminished by the circumstance that the Prosecutor’s entitlement to continue with the case depends on whether it is remitted. Whether the case is remitted depends in turn on the way in which the Appeals Chamber exercises the powers conferred on it by Article 25(2) of the Statute to “affirm, reverse or revise the decisions taken by the Trial Chambers”. I respectfully agree with the Appeals Chamber that these powers are wide enough to give a discretion not to remit in a proper case – a discretion which is of course to be judicially and not arbitrarily exercised. In this respect, I would follow jurisprudence which suggests that, even where the appellate court holds that the lower court erred in making a mid-trial acquittal, the appellate court is competent to decide not to remit the case for further proceedings.¹¹ A decision to remit is based on a finding of error, but does not necessarily follow on such a finding; the justice of the case may well admit of other considerations which the Appeals Chamber has to take into account.

21. Some assistance may be had from a perusal of the decision of the Appeals Chamber in Aleksovski.¹² True , the prosecution’s appeal was, in part, from a judgement of acquittal made at the end of the whole case and not from a mid-trial acquittal. Nevertheless, the approach taken by the Appeals Chamber may be of use. The prosecution appealed from an acquittal on counts 8 and 9 of the indictment, arguing that the Trial Chamber had applied the wrong test in making certain holdings. The Appeals Chamber agreed with the prosecution on the point but, in view of certain considerations, declined to reverse the acquittal , thus also declining to remit the case to the Trial Chamber for findings to be made on the correct test. In paragraph 154 of the judgement, it said:

This ground of appeal succeeds to the extent that the Appeals Chamber finds that the Trial Chamber applied the wrong test for determining the nature of the armed conflict and the status of protected persons within the meaning of Article 2 of the Statute. However, the Appeals Chamber declines to reverse the acquittals on Counts 8 and 9.

22. It seems to me that, in that case, it could equally have been said that a failure to remit the case interfered with the functions of the Prosecutor . It appears however that the Appeals Chamber acted on considerations of justice which went beyond the discharge by the Prosecutor of her statutory functions. A similar course seems admissible here. The Appeals Chamber has power not to remit .

23. The fourth point is this: For the reasons given, I agree with the Appeals Chamber that it has power not to remit. However, I consider that the power has not been correctly exercised in this case. It appears to me that, where the Appeals Chamber upholds the substance of a prosecution appeal from a mid-trial acquittal (as it has done in this case), the logical course would be to remit for a continuation of the hearing; a decision that the acquittal was erroneous but that the case should nevertheless not be remitted for a continuation of the hearing has to be based on exceptional grounds. In paragraph 77 of its judgement, the Appeals Chamber indeed says that it is acting on the basis of “exceptional circumstances”, but I am not persuaded that circumstances of that calibre exist.

24. The respondent has been three and a half years in detention; but it cannot be convincingly argued that, in a case of this kind, there would be any unfairness in continuing the proceedings after normal recourse to the appellate process. The fact that the respondent did not contribute to the error of the Trial Chamber is not decisive. A main point in the argument that the case should not be remitted for further proceedings is the circumstance that, as recalled by the Appeals Chamber in paragraph 76 of its judgement, the Trial Chamber recommended that the respondent should receive “psychological and psychiatric follow-up treatment”. But , as the Appeals Chamber notes in paragraph 70 of its judgement, the Trial Chamber had also rejected a contention by him, resting on “psychiatric underpinnings”, that he was not competent to stand trial. The Appeals Chamber further observed that, at the subsequent trial, he “did not plead a defence of insanity”, and that no mental “imbalance was found in this case”. Thus, there is no proven illness which justifies a decision not to resume the proceedings.

25. True, the respondent has been convicted of other crimes in relation to the same facts, but that is not dispositive; nor is it a mere academic point of clarifying the law on the meaning of intent. The question is one of recording the true extent of his criminal conduct on allegations of gravity. The proceedings of the Trial Chamber on the particular charge were not an unimportant incident in contested proceedings relating to other matters as well; they were the only contested proceedings in the whole case. In my opinion, the factors advanced by the majority , while influential, do not afford sufficient purchase on which to rest a decision not to remit. If on a continuation of the proceedings the respondent is found guilty , the matters now relied upon for not remitting can be taken into account in fixing penalty.

26. The Statute prescribes no hierarchy of penalties for the various crimes with which it deals, and so it would not be correct to proceed on the basis that any one crime is intended to be mechanically visited with greater punishment than another. However, in fixing the penalty for genocide, a Trial Chamber would have to pay regard to the character of the offence and in particular to the fact that it is generally considered to be “the crime of crimes”. It is indeed very grave . There is no reason to suppose that, if the respondent was found guilty of genocide , he could not receive a sentence of imprisonment in excess of that for 40 years handed down in respect of other crimes to which he pleaded guilty. Even if no greater sentence was imposed, the need to describe the true extent of his criminal conduct on that specially important charge would justify a decision to remit. What course the Prosecutor chooses to take if the case is remitted is another matter.

27. In paragraph 75 of its judgement, the Appeals Chamber refers to the “ad hoc nature of the International Tribunal”, to its “uncertain longevity ”, and to its “resources [being] limited in terms of manpower”. These are references to matters other than the merits of the case; I believe that the appeal which they make is to the concept of judicial economy. It appears to me that no considerations of judicial economy, in the sense of motivating a decision on a sufficient ground or grounds rather than on unnecessary ones as well, are involved. Judicial economy , in the sense of ensuring efficiency in the operation of the judicial system of the Tribunal, is no doubt an admissible consideration in determining the allocation of scarce judicial resources; but, in the circumstances of the Tribunal, it seems to me that the power of courts to act on such considerations in bringing proceedings to an end has to be sparingly confined to cases in which the particular prosecution can fairly be described as superfluous or as not exhibiting a need for judicial action.¹³ I do not think that that can be said here.

28. In paragraph 77 of its judgement, the Appeals Chamber says that its decision declining to reverse the acquittal and to remit is “in the interests of justice”. What is “in the interests of justice” must also be “in the public interest ”, a phrase used in paragraph 73 of the judgement. It is accepted that the public interest can require the discontinuance of proceedings which (even if otherwise justified) are oppressive. The Appeals Chamber has not found that it would be oppressive for the proceedings to continue. Further, a distinction has to be drawn between considerations which merely go to penalty and considerations which, although they go to penalty, rise to the level of a public interest in discontinuing the proceedings . It is hard to see how any process of weighing the interest of the individual against the general interest can come out in favour of the individual. Public policy, or the policy of the law, has been often used to justify various decisions, particularly in civil cases. But some circumspection is appropriate in the case of a criminal court. As it was said in one case:

The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public … that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial.¹⁴

29. A court of law ought not to be astute to use the public interest to stop a case on grounds which can be adequately accommodated through penalty in the ordinary way. In this case, there is nothing in the considerations advanced which enables me to discern how the interest of the international community in the judicial examination of an allegation of a serious breach of international humanitarian law is served by a finding that, although the proceedings on as grave a charge as one of genocide were erroneously terminated by the Trial Chamber, they should nevertheless not continue. I would remit.

THE CROSS-APPEAL

30. The point here concerns the subject of cumulative convictions. The cross-appellant (the “respondent” previously mentioned) was convicted, inter alia, in respect of the same conduct, of a war crime under Article 3 of the Statute and of a crime against humanity under Article 5. Without saying which, he submits that one of the two crimes was a lesser included crime of the other, and that therefore cumulative convictions were barred. The Appeals Chamber has overruled the submission. It holds that each crime has a unique element, the unique element in the case of the Article 3 crime being a requirement for proof that there was a close link between the act of the accused and the armed conflict, and the unique element in the case of the Article 5 crime being a requirement that the act of the accused was part of a widespread or systematic attack against a civilian population . Therefore, neither offence was included in the other.

31. Was this approach the correct one? In particular, was the Appeals Chamber right in treating the close link requirement as an element to be compared ? In holding as it did, the Appeals Chamber followed the majority view in Delalic¹⁵. However, I consider it to be my duty to take account of the minority view in that case, to say whether I agree with it , and, if I do, to opine whether there are convincing reasons why this bench should prefer it to the majority view then expressed.

32. The reasoned view¹⁶ of the minority in Delalic (which was not of course directed to the close link requirement) accepts the “different elements” test used by the majority in that case, but with an important qualification: it considers that, in applying the test, “only those elements relating to the conduct and mental state of the accused would be taken into account”. Except in a secondary sense (which need not be examined here), there should be excluded from the elements to be compared requirements which state “the legal prerequisites relating to the circumstances of the relevant offences ” or which “provide the context in which the offence takes place” (“the prerequisite view”). Such requirements are “elements” of the offence and they have to be proved , but they “are in practice not relevant to the conduct and state of mind of the accused” and would therefore be excluded from the comparison between the elements of one crime and those of another. On the majority view, all elements would be included in the comparison. That, it seems to me, represents a substantial difference. The question then is which of these two diverging points of view is correct.

33. In answering that question, it is helpful to consider the proposition that the accused cannot be punished more than once for the same conduct. Argument can be made that that view is not necessarily correct; that the permissibility of multiple punishment for the same conduct is one of interpretation of the legislative intent; that there is a presumption that such punishment is not the legislative intent; but that the presumption can be overcome by clear language; and that, where the presumption is overcome, multiple punishment for the same conduct is permissible ¹⁷. It is however difficult to find room for such an intent in the Statute of the Tribunal. Consequently, while I am inclined to the view that the proposition in question is not universally correct , I agree that the Tribunal may not punish more than once for the same conduct.

34. At any rate, the accused is to be punished not for his conduct simpliciter, but only for his criminal conduct.¹⁸ It may be said that no notable judicial effort is required to establish something so elementary. It is nevertheless important to emphasise the principle, if only because it warns of the need to ensure that the judgement is not affected by factually influential but legally irrelevant considerations. For, manifest as the principle may appear to be, there can be difficulty in applying it. Difficulties are prone to arise where the same conduct of an accused presents different aspects. Some aspects may be relevant to one crime, some to a different crime, while of course some may be common to two or more crimes. To record the full criminality of his conduct , it may be necessary to convict of all the crimes, overlapping in convictions being adjusted through penalty. But penalty is one thing, conviction another; even if no material penalty is imposed, as is well known, a conviction can have certain consequences for the accused.

35. Obviously, therefore, cumulative convictions should be permitted only where there are genuine differences between the crimes; duplication has to be avoided. How? By comparing the elements of the crimes concerned with a view to determining whether, in substance, they relate to the same criminal conduct. Yet , since the object is to determine whether the same criminal conduct is involved , if an element is not relevant to the criminal conduct of the accused, the quest for justice requires its exclusion from the comparison. The question then is whether it is indeed possible that an admitted element of a crime is not relevant to the criminal conduct of the accused. These considerations come to mind.

36. First, there is the question of authority. It is not my impression that any specific decided case, whether domestic or international, has so far been advanced, or can persuasively be¹⁹, in support of the view that an admitted element of a crime may not be relevant to the criminal conduct of the accused.

37. Second, the matter may be considered in relation to a suggested example. This concerns a requirement for proof that the victim of a grave breach was a “protected” person within the meaning of Article 2 of the Statute of the Tribunal . It may be said that the status of the victim as a “protected” person is a technical requirement of the operation of the provision, that that status might not have mattered to the accused in perpetrating the act, and that therefore it is not relevant to his criminal conduct. That way of looking at the matter is attractive. Is it also correct?

38. It is not in doubt that the requirement in question is an element of the crime. But perhaps a word on this may be said, if only because of the implications for the criminal conduct of the accused. It seems reasonable to suppose that a requirement which the lawgiver considered necessary for the definition of conduct from which he sought to protect society is an element of the crime, and regardless of its place in the text. In the case of an Article 2 crime, it is not possible to define the forbidden conduct except with reference to the class of persons sought to be safeguarded from it. In this respect, the provision requires proof that the victim was a “protected ” person. The requirement was set out in the chapeau of the provision. Nothing turned on that: it is ordinary drafting practice for elements which are common to a number of particularly enumerated provisions to be collected in the chapeau . What is important is that the requirement does not lie outside of the crime ; it is an integral part of the crime itself. It is consistent with customary international law to say that, unless facts are proved to show that the victim was in the position of a “protected” person, there simply was no crime under that provision. Such a requirement is therefore an element of the crime.

39. If that requirement is an element of an Article 2 crime relating to a grave breach, can it be disregarded in considering the criminal conduct of an accused who commits the crime? I think not. If the accused is charged with a grave breach, then, no matter what he has actually done and how outrageous it may be, he cannot be said to have engaged in criminal conduct under that provision unless that element, concerning the status of the victim as a “protected ” person, is proved. His only defence might well be a challenge to the establishment of that element. In effect, he could confess his acts but say that, so far as concerns the law under which he is charged, they were not criminal because of non-proof of that element. So the question whether his conduct was criminal depends, inter alia, on that element.

40. The matter may also be approached from the standpoint of the intention with which the accused acted: something which forms part of his intention has to be relevant to his criminal conduct. Article 2 of the Statute prohibits “acts against persons ... protected...”. The prosecution has to prove that the act of the accused was one which was “against persons ... protected...”. That cannot be proved unless there is evidence that the victim had that status and that the accused was aware that the victim had it. This awareness would seem to be an inseparable element of the intention with which the accused acted. But, even in the absence of a confession , no insoluble evidential problems need arise: from the objective facts a court could, in the customary way, infer both that the victim had that status and that the accused knew²⁰ that the victim had it. If the proof is made, the intention of the accused to injure a victim who , to his knowledge, possessed that status was relevant to his criminal conduct. This approach may be taken to, for example, Article 2(h) of the Statute, which speaks of “taking civilians as hostages”. If the evidence proves that an accused has engaged in “taking civilians as hostages”, very little more, if anything, is required to show that he did so precisely because he knew that they were protected persons. It will be difficult to appreciate why his intention to take them as hostages in the knowledge that they were protected persons is not relevant to his criminal conduct .

41. The elements of a crime do not of course embrace jurisdictional and procedural requirements; these delimit and regulate the power of the forum to deal with the crime and presuppose the existence of the crime. But, shutting out such requirements, it seems obvious that, in creating a crime, the legislator uses certain elements to define the conduct from which he wishes to defend society (including the victim). The crime cannot be understood without reference to all of its component elements: it is made up of its elements and is in turn defined by them. An accused whose conduct involves the commission of a crime has committed the crime as defined by all of its elements. Each element of the crime is relevant to the determination of the criminality of his conduct. It is difficult to disaggregate the elements of a crime and to say that some are relevant to the criminal conduct of the accused and others not. Leaving alone the problems of subjectivity which that would involve , it appears to me that, once something is accepted to be an element of the crime as defined by the legislation, that element has to be dutifully taken into account by the courts in making any comparison of elements for the purpose of determining whether cumulative convictions are possible.

42. It seems to me that it is only by proceeding in this way that a criminal justice system can take account of all of the public interests which are intended to be protected. Even though the actual conduct may be the same, it could injure different public interests; the existence of these differences in public interests may well be signalled by the presence of the unique elements. Thus, the requirement under Article 2 of the Statute for proof that the victim was a “protected ” person evidences the legitimate interest of international society to afford protection to persons in that situation. But international society may have an equally legitimate interest in securing the welfare of the same victim in another situation. The different situations may overlap in relation to the particular victim; but they overlap and are not the same, even though they may both be injured by the same act. An accused who is guilty of the “wilful killing” of a person “protected” within the meaning of Article 2 has injured a different interest of international society from the interest of that society which is injured if the “wilful killing” (where it is considered as “murder”) is also committed as part of a widespread or systematic attack against a civilian population as contemplated by Article 5. The full protection of these distinct societal interests requires cumulative convictions. To convict of one offence only is to leave unnoticed the injury to the other interest of international society and to fail to describe the true extent of the criminal conduct of the accused. Penalty is of course a different matter.

43. Third, there could be a problem of attempting to reconcile ideas which are not easily harmonised. It is appreciated that the argument is that an element can be in the nature of a prerequisite of the formation of the mens rea and the execution of the actus reus, and not a prerequisite of the crime as a whole. Thus, on its own terms - and it is proper to acknowledge this - the prerequisite view does not involve an inconsistency of speaking of a requirement which is both a prerequisite of the crime while being at the same time an element of the crime. However, it is believed that international humanitarian law looks to the substance, and so the matter may be regarded from this point of view.

44. As noted above, the prerequisite view is concerned not with the accused’s conduct simpliciter, but with his “criminal conduct”²¹. The view which I have offered is that whether his conduct is criminal can only be determined by reference to each and every element of the crime. On this view, there would be difficulty in holding that a requirement can be both a prerequisite of a crime while it is at the same time an element of the crime; ex hypothesi , that cannot be. To hold that that is possible collides with the view that, as it is said in the jurisprudence, a thing cannot at one and the same time be and not be.²²

45. These difficulties do not bar recognition that the matter to which the prerequisite view relates is important to the accomplishment of the mission of the Tribunal to do justice. If I considered that it was clearly the better view , I should, for myself, have little hesitation in opining that this bench of the Appeals Chamber should prefer it to the approach taken by the majority in Delalic . However, for the foregoing reasons, I am not able to say that I find it persuasive ; in my opinion, the task of the Tribunal to do justice is better fulfilled by following the majority approach.²³

46. For these reasons, I consider that this bench of the Appeals Chamber is correct in taking the position that the close link requirement, as an element of a crime under Article 3 of the Statute, has to be taken into account in comparing the elements of that crime with the elements of a crime under Article 5 of the Statute for the purpose of determining whether cumulative convictions are permissible in respect of both crimes.

Done in both English and French, the English text being authoritative.

____________________
Mohamed Shahabuddeen

Dated this fifth day of July 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - IT-96-21-A, of 20 February 2001, paras. 433-434.
2 - Ibid., para. 433.
3 - R. v. Barking and Dagenham Justices, Ex parte Director of Public Prosecutions [1995] Crim LR 953, per Scott Baker J.
4 - [1962] 1 All ER 448.
5 - See R. v. Galbraith [1981] 1 WLR 1039, phrased in terms appropriate to a trial by judge and jury.
6 - Per Lord Merriman P., in Ramsden v. Ramsden [1954] 2 All ER 623.
7 - Blackstone’s Criminal Practice 2001 (London, 2001), p. 1562, paragraph D19.8.
8 - See Emmins on Criminal Procedure, 5th ed. (London, 1992), p. 194, para. 12.8.3, and Seabrooke and Sprack, Criminal Evidence and Procedure: The Statutory Framework (London, 1996), p. 303, para. 22.3.
9 - R. v. Galbraith, supra.
10 - Blackstone, supra, p. 1562, para. D19.8.
11 - See, inter alia, Botton v. Secretary of State for the Environment [1992] 1 PLR 1; Griffith v. Jenkins [1992] 2 A.C. 76, H.L.; Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000; and R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecution [1995] Crim LR 953. Particularities are not, it is submitted, relevant to the general thinking.
12 - IT-95-14/1-A, of 24 March 2000.
13 - See, generally, United States of America v. Hooper, (1970) 139 U.S. App. D.C. 171, and United States of America v. Lindsey, (1995) 310 U.S. App. D.C. 300.
14 - Au Pui-Kuen v. Attorney-General of Hong Kong [1979] 1 All ER 769, PC.
15 - IT-96-21-A, of 20 February 2001.
16 - Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna in Delalic, IT-96-21-A, of 20 February 2001, paras. 25ff.
17 - See Missouri v. Hunter, 459 U.S. 359 (1983), At pp. 368-369, in which Chief Justice Burger, delivering the opinion of the Supreme Court of the United States, said that “[w]here a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial”.
18 - See Separate and Dissenting Opinion, supra, para. 26; italics as in the original. And see paragraph 27, ibid.
19 - See and compare Grady v. Corbin, 495 U.S. 508 (1990), favouring the “same conduct” test, and United States v. Dixon, (1993) 113 S. Ct. 2849, overruling the former and restoring the “same elements” test of Blockburger v. United States, 284 U.S. 299 (1932). That the double jeopardy principle was involved does not affect the applicability of the fundamental underlying principle, although, as the literature shows, it is recognised that there is room for discussion.
20 - See in this respect Report of the Preparatory Commission for the International Criminal Court, PCNICC/2000/INF/ Add.2, UN General 6 July 2000, stating, under Article 8(2)(a) at p. 18, that the “perpetrator was aware of the factual circumstances that established that protected status”, a formula which, it is believed, avoids a purely subjective approach to the question of knowledge while respecting the usual requirements of mens rea.
21 - See Separate and Dissenting Opinion, supra, para. 26; italics as in the original. And see para. 27, ibid.
22 - For example, “An institution … cannot at one and the same time be and not be”. See Namibia, I.C.J. Reports 1971, at p. 73, per Judge Ammoun, concurring. Whatever might be the position in other fields of thought, that, I think, represents the standard jurisprudential view. Thus, as it was put, it “is not usual to advance at one and the same time an argument and its opposite”. See Nuclear Tests, Interim Measures (Australia v. France), I.C.J. Reports 1973, 99 at 153, per Judge Gros, dissenting.
23 - This is not to say that, individually, I would not wish to reserve my thinking on other aspects of the reasoning in Delalic. I am not sure that paragraphs 419-423 of the judgement in that case proceeded on the premise that Article 3 of the Statute of the Tribunal is confined to cases involving injury to persons taking no active part in the hostilities. If so, it is to be observed that, in paragraph (a), the provision provides for prosecution of cases involving the “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering”. Injury to active members of opposing fighting forces would appear to be contemplated. Also, I do not have the impression that paragraphs 412-413 of the Delalic judgement deal with a case in which all the elements of one crime are the same as all the elements of the other crime or crimes. It is possible that the omission was due to a view that that could not happen under the Statute of the Tribunal. But that would be a matter for argument in a proper case.