306. […] [T]he Appeals Chamber observes that the language of the Trial Judgement may be read to conclude that certain factors were taken into account twice by the Trial Chamber in its assessment of the gravity of the crimes and the aggravating circumstances.[1] Where established, such double-counting amounts to a legal error since “factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.”[2] […]

309. The Appeals Chamber is not convinced by the Prosecution’s argument that relying on different aspects of the same fact is permissible. In weighing a fact, either as an aspect of the gravity of the crime or as an aggravating circumstance, the Trial Chamber is required to consider and account all of its aspects and implications on the sentence in order to ensure that no double-counting occurs. The Appeals Chamber thus finds that the said facts could only be taken into consideration once – either as factors relevant to the gravity of the crimes or as aggravating circumstances.

143. With respect to the Prosecution’s submission that Haradin Bala’s subordinate role was counted twice when assessing the gravity of the crimes and when determining the factors in mitigation, the Appeals Chamber recalls that double-counting for sentencing purposes is impermissible.[1] The Trial Chamber found in the section on the gravity of the offence that “Haradin Bala was not in a position of command“ and that his role was “that of a guard”.[2] Similarly, in the section on the “aggravating and mitigating circumstances”, the Trial Chamber held that Haradin Bala “was not a person with any commanding or authoritative role in the establishment of the camp, and essentially performed duties assigned to him, as essentially a ‘simple man’.”[3] Consequently, the Trial Chamber erred in considering twice in mitigation Haradin Bala’s subordinate role.

144. […] If the error is so slight as to be harmless, the Appeals Chamber may affirm the same sentence as imposed by the Trial Chamber: such is the case here. The Appeals Chamber has carefully reviewed the Trial Chamber’s reasoning and believes that the Trial Chamber’s double-counting error was, in fact, so insignificant that the Trial Chamber would have arrived at the same sentence of thirteen years even if it had not fallen into error.