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.