The Trial Chamber convicted the Appellant for committing extermination at Gitwa Hill, and, alternatively, for both instigating, and aiding and abetting extermination (Trial Judgement, para. 485). The Appeals Chamber proprio motu raised the issue of alternative convictions and held

122.  While an accused can be convicted for a single crime on the basis of several modes of liability, alternative convictions for several modes of liability are, in general, incompatible with the principle that a judgement has to express unambiguously the scope of the convicted person’s criminal responsibility. This principle requires, inter alia, that the sentence corresponds to the totality of guilt incurred by the convicted person. This totality of guilt is determined by the actus reus and the mens rea of the convicted person. The modes of liability may either augment (e.g., commission of the crime with direct intent) or lessen (e.g., aiding and abetting a crime with awareness that a crime will probably be committed[1]) the gravity of the crime.[2] Thus, the criminal liability of a convicted person has to be established unequivocally.

In the present case, the Appeals Chamber held, by majority, Judge Güney dissenting (see also below under “Extermination: committing”), that the Trial Chamber did not convict the Appellant in the alternative; rather, the Trial Chamber was seeking to provide a further characterisation of the Appellant’s criminal conduct, which constituted committing, instigating, and aiding and abetting.

For case-law on cumulative charging and the pleading principles on the various modes of liability, see Chapter VI of the Blaškić Appeal Judgement.