168. The Appeals Chamber accepts the approach articulated in the Čelebići Appeal Judgement, an approach heavily indebted to the Blockburger decision of the Supreme Court of the United States.[1]  The Appeals Chamber held that: [2]

fairness to the accused and the consideration that only distinct crimes 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. 

Where this test is not met, the Chamber must decide on the basis of the principle that the conviction under the more specific provision should be upheld.

169. Care, however, is needed in applying the Čelebići test for, as Judges Hunt and Bennouna observed in their separate and dissenting opinion in the same case, cumulative convictions create “a very real risk of … prejudice” to the accused.[3] At the very least, such persons suffer the stigma inherent in being convicted of an additional crime for the same conduct.   In a more tangible sense, there may be such consequences as losing eligibility for early release under the law of the state enforcing the sentence.[4] Nor is such prejudice cured, as the U.S. Supreme Court warned in Rutledge v U.S.,[5] by the fact that the second conviction’s concomitant sentence is served concurrently.[6]  On the other hand, multiple convictions serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct.[7]

170. Typically, the issue of multiple convictions or cumulative convictions arises in legal systems with a hierarchy of offences in which the more serious offences within a category require proof of an additional element or even require a specific mens rea. It is, however, an established principle of both the civil and common law that punishment should not be imposed for both a greater offence and a lesser included offence. Instead, the more serious crime subsumes the less serious (lex consumens derogat legi consumptae). The rationale here, of course, is that the greater and the lesser included offence constitute the same core offence, without sufficient distinction between them, even when the same act or transaction violates two distinct statutory provisions.[8]  Indeed, it is not possible to commit the more serious offence without also committing the lesser included offence.[9]

171. In national laws, this principle is easier to apply because the relative gravity of a crime can normally be ascertained by the penalty imposed by the law. The Statute, however, does not provide a scale of penalties for the various crimes it proscribes.  Nor does the Statute give other indications as to the relative gravity of the crimes.  Indeed, the Tribunal has explicitly rejected a hierarchy of crimes, concluding instead that crimes against humanity are not inherently graver than war crimes.[10] 

172. The Čelebići/Blockburger test serves to identify distinct offences within this constellation of statutory provisions.[11] While subscribing to this test, the Appeals Chamber is aware that it is deceptively simple.  In practice, it is difficult to apply in a way that is conceptually coherent and promotes the interests of justice.

173. For this reason, the Appeals Chamber will scrutinise with the greatest caution multiple or cumulative convictions. In so doing, it will be guided by the considerations of justice for the accused: the Appeals Chamber will permit multiple convictions only in cases where the same act or transaction clearly violates two distinct provisions of the Statute and where each statutory provision requires proof of an additional fact which the other does not.

174. The Appeals Chamber wishes to emphasise that whether the same conduct violates two distinct statutory provisions is a question of law. Nevertheless, the Chamber must take into account the entire situation so as to avoid a mechanical or blind application of its guiding principles.

153. The Appellants argue that the intention of the perpetrator was of a sexual nature, which, in their view, is inconsistent with an intent to commit the crime of torture.[1]  In this respect, the Appeals Chamber wishes to assert the important distinction between “intent” and “motivation”.  The Appeals Chamber holds that, even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims. […]

[…]

155. […] [T]he Appeals Chamber restates the conclusions of the Trial Chamber[2] that acts need not have been perpetrated solely for one of the purposes prohibited by international law.  If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose (even one of a sexual nature) is immaterial.

40. [...] Rule 94bis contains nothing which is inconsistent with the application of Rule 92bis to an expert witness.  Indeed, Rule 92bis expressly contemplates that witnesses giving evidence relating to the relevant historical, political or military background of a case (which is usually the subject of expert evidence) will be subject to its provisions.  There is nothing in either Rule which would debar the written statement of an expert witness, or the transcript of the expert’s evidence in proceedings before the Tribunal, being accepted in lieu of his oral testimony where the interests of justice would allow that course in order to save time, with the rights of the other party to cross-examine the expert being determined in accordance with Rule 92bis.  Common sense would suggest that there is every reason to suggest that such a course ought to be followed in the appropriate case.

29.     Unlike the civil law, the common law permits hearsay evidence only in exceptional circumstances.[1]  When many common law jurisdictions took steps to limit the rule against hearsay by permitting the admission of written records kept by a business as evidence of the truth of what they stated notwithstanding that rule, they invariably excluded from what was to be admissible under that exception any documents made in relation to pending or anticipated legal proceedings involving a dispute as to any fact which the document may tend to establish.  This exclusion reflected the fact that such documents are not made in the ordinary course by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned.  It also rested upon the recognised potential in relation to such documents for fabrication and misrepresentation by their makers and of such documents being carefully devised by lawyers or others to ensure that they contained only the most favourable version of the facts stated.

30.     The decision to encourage the admission of written statements prepared for the purposes of such legal proceedings in lieu of oral evidence from the makers of the statements was nevertheless taken by the Tribunal as an appropriate mixture of the two legal systems, but with the realisation that any evidentiary provision specifically relating to that material required considerable emphasis upon the need to ensure its reliability.  This is particularly so in relation to written statements given by prospective witnesses to OTP investigators, as questions concerning the reliability of such statements have unfortunately arisen,[2] from knowledge gained in many trials before the Tribunal as to the manner in which those written statements are compiled.[3] Rule 92bis has introduced that emphasis.

23. [...] [T]he maxim expressio unius est exclusio alterius[...][1] [...] must always be applied with great care in statutory interpretation, for it is not of universal application. [...]

7. The certificate given by the Trial Chamber pursuant to Rule 73(C) (as it then stood)^[[1]^] – that it was appropriate for the continuation of the trial that an interlocutory appeal be determined – related only to [one of several] issues […]. It is, however, within the discretion of the Appeals Chamber to determine also other, related, issues where it considers it appropriate to do so, at least where they have been raised in the interlocutory appeal and the respondent to the appeal has had the opportunity to put his or its arguments in relation to those related issues. […]

19. […] Equality of arms is a broad concept that constitutes an inherent element of a fair trial. According to the principle of equality of arms each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. It is a protection afforded to the accused to ensure that he is given procedural rights equal to those of the Prosecution in the course of criminal proceedings. Those procedural rights include giving the accused effective ways to challenge evidence produced by the Prosecution.

20. The principle of "equality of arms" inheres in the requirement that the accused be recognised the right to a fair trial. Basically, this principle embodies the notion that the accused should be afforded procedural equality with respect to the Prosecution. Its purpose is to give each party equal access to the processes of the Tribunal, or an equal opportunity to seek procedural relief where relief is needed.[4] The right to equality of arms does not include a right to equality of relief.[5] […]

15. […] Rule 7 (“Authentic Texts”) provides that the English and French texts of the Rules are equally authentic.  In the case of a discrepancy, the Rule requires the version which is “more consonant with the spirit of the Statute and the Rules” to prevail, but this provision would normally be applied only where the discrepancy between the two versions is intractable. […]

16. Although neither the Tribunal’s Statute nor its Rules of Procedure and Evidence are, strictly speaking, treaties, the principles of treaty interpretation have been used by the Appeals Chamber as guidance in the interpretation of the Tribunal’s Statute, as reflecting customary rules.[1]  Such principles may also be used appropriately as guidance in the interpretation of the Tribunal’s Rules of Procedure and Evidence. […]

3. The prosecution accepts, correctly, that the decision of a Trial Chamber as to whether two or more crimes should be joined in the one indictment pursuant to Rule 49 of the Rules of Procedure and Evidence (“Rules”) is a discretionary one.[1] A Trial Chamber exercises a discretion in many different situations – such as when imposing sentence,[2] in determining whether provisional release should be granted,[3] in relation to the admissibility of some types of evidence,[4] in evaluating evidence,[5] and (more frequently) in deciding points of practice or procedure.[6]

4. Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision. Provided that the Trial Chamber has properly exercised its discretion, its decision will not be disturbed on appeal, even though the Appeals Chamber itself may have exercised the discretion differently. That is fundamental to any discretionary decision. It is only where an error in the exercise of the discretion has been demonstrated that the Appeals Chamber may substitute its own exercise of discretion in the place of the discretion exercised by the Trial Chamber.

5. It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a “discernible” error made by the Trial Chamber.[7] It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.[8]

6. In relation to the Trial Chamber’s findings of fact upon which it based its exercise of discretion, the party challenging any such finding must demonstrate that the particular finding was one which no reasonable tribunal of fact could have reached,[9] or that it was invalidated by an error of law. Both in determining whether the Trial Chamber incorrectly exercised its discretion and (in the event that it becomes necessary to do so) in the exercise of its own discretion, the Appeals Chamber is in the same position as was the Trial Chamber to decide the correct principle to be applied or any other issue of law which is relevant to the exercise of the discretion. Even if the precise nature of the error made in the exercise of the discretion may not be apparent on the face of the impugned decision, the result may nevertheless be so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[10] Once the Appeals Chamber is satisfied that the error in the exercise of the Trial Chamber’s discretion has prejudiced the party which complains of the exercise, it will review the order made and, if appropriate and without fetter, substitute its own exercise of discretion for that of the Trial Chamber.[11]

CONSIDERING […] that the obligation of Counsel not to disclose the name of protected witnesses or the content of protected material is […] implicit in his or her responsibility as Counsel, and that this obligation underlay any order of a Chamber rendered pursuant to Rule 75;