831. The Appeals Chamber recalls that trial chambers are not inherently precluded from entering a conviction for a crime on the basis of more than one mode of liability, if this is necessary to reflect the totality of an accused’s criminal conduct.[1] The Appeals Chamber considers that the Trial Chamber correctly set out the applicable law in relation to the entering of convictions on the basis of multiple modes of liability.[2] The Appeals Chamber further recalls that the scope of a convicted person’s criminal responsibility must be unequivocally established[3] and that a trial chamber must “identify unambiguously the mode(s) of liability for which an accused is convicted and the relation between them”.[4] The Appeals Chamber emphasises that whether single or multiple forms of responsibility are found to be appropriate, it is the crime itself, rather than the mode of liability, for which an accused person is convicted.[5] It follows that any sentence imposed by a trial chamber must correspond to the totality of the criminal conduct of a convicted person, and that the convicted person must not be punished more than once for the same conduct.[6] In this regard, the Appeals Chamber is satisfied that the Trial Chamber convicted Đorđević for the crimes once, on the basis of two modes of liability, and not, as he contends, twice for the same crimes.[7] Accordingly the Appeals Chamber finds that, as a matter of law, it was within the Trial Chamber’s discretion to enter convictions on the basis of more than one mode of liability.

832. The Appeals Chamber observes, however, that, contrary to the Prosecution’s submission,[8] the conduct relied upon to establish Đorđević’s liability pursuant to aiding and abetting is entirely encapsulated within the conduct the Trial Chamber relied on to establish his participation in the JCE, and that the Trial Chamber made no distinction between the acts committed by Đorđević with respect to either form of liability.[9] In these circumstances, the Trial Chamber’s conclusion that “[t]hese facts are sufficiently compelling to also maintain the conviction for aiding and abetting […] in order to fully encapsulate [Đorđević’s] criminal conduct” does not provide any explanation of the relationship between the two modes of liability.[10] As a result, the Trial Chamber fails to articulate why both modes of liability were necessary to reflect the totality of his conduct,[11] particularly in light of its explicit finding that Đorđević’s “primary criminal liability in this case is by virtue of his participation […] in a joint criminal enterprise”.[12] In the Appeals Chamber’s view this constitutes a failure to provide a reasoned opinion, and amounts to an error of law.[13]