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.
I. CUMULATIVE CONVICTIONS
Cumulative convictions occur when an accused is convicted of multiple offenses under different legal headings for the same conduct. (3) Such convictions are distinguishable from cumulative charges, which involve drafting an indictment in a manner that alleges various offenses for the same conduct. Cumulative charges may result in multiple convictions or a single conviction, but are not determinative.
A thorough comparative analysis of cumulative convictions at the domestic level and how different jurisdictions have dealt with 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. …