257. To establish the culpability of an accused for the crime of violence to life, health, and physical or mental well-being of persons (murder) as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, the Prosecution bears the onus of proving, in addition to the threshold elements of Article 4 of the Statute recalled above,[1] the following specific elements:

1. the death of a victim taking no active part in the hostilities;
2. that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;
3. the intent of the accused or of the person or persons for whom he is criminally responsible
1. to kill the victim; or
2. to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[2]

414. The Appeals Chamber notes that the permissibility of cumulative convictions for the crimes of murder as a crime against humanity and persecution as a crime against humanity has been specifically considered by the Appeals Chamber.[1] The Appeals Chamber has found that the crime of persecution requires a materially distinct element to be proven that is not present as an element in the crime of murder, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.[2] The crime of murder was also held to require proof of a materially distinct element that is not required to be proven in establishing the crime of persecution, namely proof of the death of one or more persons.[3] Therefore, cumulative convictions for murder and persecution as crimes against humanity were found to be permissible.[4] The Appeals Chamber accordingly finds that the Trial Chamber did not err in convicting Nsengiyumva for both murder and persecution as crimes against humanity for the killings in Gisenyi town.[5]

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

735. The Appeals Chamber confirms that cumulative convictions for extermination and persecution as crimes against humanity based on the same set of facts are permissible since each offence has a materially distinct element not contained in the other.[6] Extermination requires proof that the accused caused the death of a large number of people, while persecution necessitates evidence that an act or omission was in fact discriminatory and that the act or omission was perpetrated with the specific intent to discriminate.[7].

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[1] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[2] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

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.

262. In a joint criminal enterprise such as that conducted in Omarska camp, it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment. In this case it has to be proved that the death of the victim was the result of what happened in Omarska camp, be it inhumane conditions, beatings or ill-treatment. On this point, Kvočka rightly argues that the Trial Chamber must first establish the existence of the crime of murder. In this regard, the Appeals Chamber notes that the Trial Chamber did not provide a specific section for the murders committed in Omarska camp and for the specific responsibility of each of the accused for these murders. The Trial Chamber made, however, a number of findings throughout the Trial Judgement on the charges of murder alleged in the Indictment. The Appeals Chamber refers to its previous discussion in this respect[1] and recalls that such a generic approach does not invalidate the Trial Judgement. The Appeals Chamber dismisses Kvočka's contention that the Trial Chamber failed to evaluate the evidence in its ruling on the charges of murder.

263. In addition, contrary to Kvočka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose.[2] […]

157. In convicting Milan Lukić of committing murder, the Trial Chamber relied on the proposition contained in the Seromba and Gacumbitsi Appeal Judgements[1] that: “a person who did not personally physically commit a crime – in the present case, personally shooting each victim – can nonetheless be liable for committing the crime of murder if there is evidence that the perpetrator’s acts were as much an integral part of the murder as the killings which the crime enabled.”[2] The Trial Chamber acknowledged that the crime charged in the present case was murder, and not genocide or extermination, which were the crimes under consideration in Seromba and Gacumbitsi.[3] However, in its view, the reasoning was also applicable to the crime of murder.[4]

162. The Appeals Chamber does not find it necessary to consider whether the Seromba/Gacumbitsi line of reasoning should be followed with regard to the crime of murder. Contrary to Milan Lukić’s assertion, the Appeals Chamber is of the view that the Limaj et al. Appeal Judgement is relevant to the issue at hand. In that case, the Appeals Chamber upheld Haradin Bala’s conviction as a direct perpetrator, in the absence of a JCE, for committing murder by executing nine prisoners, on the basis that he “participated physically in the material elements of the crime of murder, jointly with Murrizi, and perhaps with a third KLA soldier” and without a need to show whose bullet killed each victim.[5] Similarly, the Appeals Chamber is satisfied that the Trial Chamber did not err when finding that Milan Lukić, jointly with others, participated in the material elements of the crime of murder, and is therefore responsible for the death of all five victims, regardless of whether or not he personally fired the fatal bullet in each case. Milan Lukić’s arguments to the contrary are dismissed, and his sub-ground 1(B) is thus rejected.

186.    […] Ruzindana […] raises the specific issue of a material element required to establish responsibility for committing killings, namely “resulting death”.

187.    On the aspect of the legal element of “committing” referred to in Article 6 (1) of the Statute, the Appeals Chamber in the Tadić Appeal Judgement had occasion to consider an identical provision in Article 7 (1) of ICTY Statute and stated that:

This provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.[1]

          The Appeals Chamber accepts this statement as accurate. Thus, any finding of direct commission requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the Statute, together with the requisite knowledge. For the present purposes, the Appeals Chamber sees no further necessity to attempt a detailed definition of what constitutes individual responsibility for the element of “committing” under Article 6 (1) of the Statute. It suffices to observe that according to the jurisprudence discussed, the element of “resulting death” is not an indispensable factor or element to be established in proving individual responsibility under Article 6(1) of the Statute. […]

[…]

190.    […] As discussed above, the issue of resulting death is not a legal element in the determination of criminal responsibility under Article 6(1) of the Statute; it can be an evidential factor in the proof of such a responsibility. Accordingly, the Appeals Chamber is satisfied that it was open to the Trial Chamber to assess the evidence before it in order to establish whether death resulted. […]