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.

25. […] As the Referral Bench found, the crimes allegedly committed by the Appellant were grave indeed. They included a number of horrific incidents that resulted in the deaths of a total of more than 150 people – namely, two incidents where Bosnian Muslim men, women, and children were forcibly barricaded into houses that were then set on fire,[1] two incidents in which Bosnian Muslim men were seized and then gunned down along the banks of a river,[2] one incident in which a Bosnian Muslim woman was questioned and then shot repeatedly,[3] and repeated incidents of inhumane acts and cruel treatment aimed at Bosnian Muslim men held at a detention camp.[4] Of course, gravity alone is not dispositive.  The alleged crimes in this case are comparable to those alleged with regard to Paško Ljubičić, an intermediate-level military leader whose case was referred by the Tribunal pursuant to Rule 11bis.[5]  But when the Appellant’s alleged crimes are taken in conjunction with the earlier-discussed role allegedly played by him as a paramilitary leader, this case becomes too significant to be appropriate for referral.  As noted earlier, the Security Council intended for the Tribunal to try top paramilitary leaders[6] and the allegations against the Appellant put him into this category.  In this regard, his case differs substantially from that of Gojko Janković (“Janković”), another paramilitary leader whose case was referred pursuant to Rule 11bis of the Rules.  Although a paramilitary leader, Janković was also acting at an intermediate level within the military hierarchy as a sub-commander of the military police.[7]  Moreover, Janković was charged with crimes in relation to a series of rapes and sexual assaults which, while serious indeed, involved far fewer victims and fewer varied incidents than the charges set out against the Appellant in the Second Amended Indictment.[8]

26.    Indeed, the Prosecution has not identified any paramilitary leader indicted by the Tribunal in whose case the gravity of crimes charged and the level of responsibility of the accused are, when taken in conjunction, as significant as those in the present case.  Nor is the Appeals Chamber aware of any such case, with the possible exception of the indictment issued against the now-deceased Željko Ražnjatović (also known as “Arkan”).[9]  […]