1039. It has previously been held in Krnojelac, Vasiljević, and Krstić, that intra-Article 5 convictions under the Statute for persecutions as a crime against humanity with other crimes against humanity found in that Article, are impermissibly cumulative.  In Vasiljević and Krstić, the Appeals Chamber stated that the appellant could not be convicted both for murder and persecutions under Article 5(a) and (h) of the Statute, on the basis of the same acts.[1] It was reasoned that where a charge of persecutions is premised on murder and is proven, the Prosecution need not prove an additional fact in order to secure the conviction for murder because the offence is subsumed by the offence of persecutions, which requires proof of a materially distinct element of discriminatory intent in the commission of the act.[2] Similarly, the Appeals Chamber in these cases, as well as in Krnojelac, held that convictions for persecutions under Article 5(h) and for other inhumane acts under Article 5(i) on the basis of the same conduct are impermissibly cumulative “since the crime of persecution in the form of inhumane acts subsumes the crime against humanity of inhumane acts.”[3] 

1040. The Appeals Chamber considers that cogent reasons warrant a departure from this jurisprudence[4] as an incorrect application of the Čelebići test to intra-Article 5 convictions.  These cases are in direct contradiction to the reasoning and proper application of the test by the Appeals Chambers in Jelisić, Kupreškić, Kunarać, and Musema. As stated above, the Appeals Chamber in Čelebići expressly rejected an approach that takes into account the actual conduct of the accused as determinative of whether multiple convictions for that conduct are permissible.  Rather, what is required is an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted. It must be considered whether each offence charged has a materially distinct element not contained in the other; that is, whether each offence has an element that requires proof of a fact not required by the other offence.  

1041. The first pair of intra-Article 5 cumulative convictions at issue in this case is persecutions as a crime against humanity under Article 5(h) of the Statute and murder as a crime against humanity under Article 5(a) of the Statute. The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of murder under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Murder, by contrast, requires proof that the accused caused the death of one or more persons, regardless of whether the act or omission causing the death discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts under Article 5 of the Statute are permissible in relation to these crimes.

1042. The second pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and other inhumane acts as a crime against humanity under Article 5(i) of the Statute.  The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of other inhumane acts under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Other inhumane acts, by contrast, require proof that the accused caused serious bodily or mental harm to the victim(s), regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.

1043. Finally, the third pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and imprisonment as a crime against humanity under Article 5(e) of the Statute.  The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of imprisonment under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate.  On the other hand, the offence of imprisonment requires proof of the deprivation of the liberty of an individual without due process of law, regardless of whether the deprivation of liberty discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions.  Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.  

See also Joint Dissenting Opinion on Cumulative Convictions of Judges Schomburg and Güney.

471.     […] [T]he Appeals Chamber recalls that unlawful confinement as a grave breach of the Geneva Conventions arises in the following two circumstances:

(i) […] a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e. they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii) […] the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.[1]

In adopting this definition, the Appeals Chamber noted that restrictions on the rights of civilians, such as the “deprivation of their liberty by confinement” are subject to the safeguards in Article 42, as well as Article 5, of Geneva Convention IV.[2] As for imprisonment as a crime against humanity, the Appeals Chamber recalls that it “should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population”.[3]

472.     Thus, it is clear from the above that both crimes concern the deprivation of liberty of an individual. Further, with the exception of chapeau requirements for war crimes and crimes against humanity, imprisonment – in the context of armed conflict – and unlawful confinement of civilians overlap significantly given that the Appeals Chamber has confirmed that the legality of imprisonment and the procedural safeguards pertaining to it are to be determined based on Articles 42 and 43 of Geneva Convention IV.[4]

473.     Finally, the Appeals Chamber considers that determining whether a person has been deprived of his or her liberty will depend on the circumstances of each particular case and must take into account a range of factors, including the type, duration, effects, and the manner of implementation of the measures allegedly amounting to deprivation of liberty.[5] In that respect, the Appeals Chamber notes that it has in the past confirmed that both imprisonment and unlawful confinement of civilians can occur even in situations where the civilians are held in houses in villages, including those who are held in their own village and their own houses, without guards, and where they have some freedom of movement. In Kordić and Čerkez, the Appeals Chamber upheld the Trial Chamber’s finding that the civilians in the village of Rotilj were imprisoned and unlawfully confined since the village was surrounded by HVO [Croatian Defence Council (Army of BiH Croats)], the civilians were not held there for their own safety, and they were prevented from leaving while at the same time were subjected to beatings, thefts, and sexual abuse.[6] […]

479. […] [W]ith respect to [ Praljak’s] submission that these civilians had their movement restricted for their own security, which is permitted under Article 27 of Geneva Convention IV, the Appeals Chamber notes that Article 27(4) of Geneva Convention IV is broadly worded and provides that the Parties to the conflict “may take such measures of control and security in regard to protected persons as may be necessary as a result of the war”. The Commentary to Article 27 then states that while restriction of movement is one of the measures a belligerent may inflict on protected persons, internment of civilians and the placing of civilians in assigned residences are the two most severe measures that may be inflicted on protected persons under Article 27 and, as such, are subject to strict rules outlined in Articles 41-43 and 78 of Geneva Convention IV.[7] One of these rules is that the internment or placement in assigned residence may be ordered only if the security of the detaining party makes it absolutely necessary, while another provides that an initially lawful internment or placement in assigned residence clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[8] […].

513. […] The Appeals Chamber recalls that it has in the past confirmed that detention amounting to imprisonment and unlawful confinement of civilians can occur even in situations where the civilians are held in houses without guards and where they have some freedom of movement. In Kordić and Čerkez, the Appeals Chamber confirmed the Trial Chamber’s finding that the civilians in the village of Rotilj were imprisoned and unlawfully confined since the village was surrounded by HVO, the civilians were not held there for their own safety, and they were prevented from leaving while at the same time subjected to beatings, thefts, and sexual abuse.[9] Bearing that in mind and in light of the Trial Chamber’s findings outlined above,[10] the Appeals Chamber considers that Praljak fails to demonstrate that the Trial Chamber erred in concluding that Muslims in Podgrade, Lapsunj, and Duge were deprived of their liberty. In that respect, the Appeals Chamber notes that even though the civilians had some freedom of movement in those three locations, the factual findings outlined above show that it was limited and that the great majority of the civilians were in fact confined to the three locations in very harsh conditions, as was the case in In Kordić and Čerkez. The freedom of movement consisted of some individuals occasionally leaving the houses they were housed in, either to obtain food or to hide from potential abuse and sexual assaults at night-time. The Appeals Chamber considers that, given the findings on the presence of HVO soldiers and Military Police in those locations and the fact that the civilians were arrested and brought there by those forces, the Trial Chamber did not err in concluding that the population could not leave Podgrade, Lapsunj, and Duge.

See also paras. 508, 509, 514.