693. […] The law relating to aggravating factors as applied by the International Tribunal is clear. Where an aggravating factor is present and yet is not an element of the crime, that factor may be considered in aggravation of sentence. However, where an aggravating factor for the purposes of sentencing is at the same time an element of the offence, it cannot also constitute an aggravating factor for the purposes of sentencing.[1]

3265. […] [T]he Appeals Chamber recalls that a factor considered by a trial chamber as an element of a crime cannot also be considered as an aggravating circumstance.[1] The Appeals Chamber observes that Prlić was convicted under Article 7(1) of the Statute for his commission of crimes through a JCE.[2] In its aggravating factors analysis, the Trial Chamber considered that the fact that Prlić in his position of authority had committed crimes amounted to an abuse of authority.[3] The Appeals Chamber further recalls that a position of authority is not an element of JCE responsibility under Article 7(1) of the Statute.[4] Consequently, although an assessment of JCE responsibility may involve consideration  of a person’s official role and commission of crimes in that capacity, as in the present case,[5] a JCE conviction does not rest upon these factors.[6] […]

See also paras. 3278, 3290.