81. The Appeals Chamber recalls that under Count 2, genocide, and Count 6, extermination as a crime against humanity, the Trial Chamber found the Appellant responsible both individually, pursuant to Article 6(1) of the Statute, and as a superior, pursuant to Article 6(3).[1] The Appeals Chamber notes that the convictions for individual and superior responsibility under each of these counts are based on the same facts.[2] The jurisprudence of the ICTY Appeals Chamber provides that concurrent conviction for individual and superior responsibility in relation to the same count based on the same facts constitutes legal error invalidating the Trial Judgement.[3] The Appeals Chamber endorses this position. Accordingly, the Appeals Chamber vacates the Appellant’s convictions for genocide and extermination as a crime against humanity under Counts 2 and 6 in so far as they are based on a finding of superior responsibility under Article 6(3).

34. The provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility.  However, the Appeals Chamber considers that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute.[1]  Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.[2]