In the judgment of Simeon Nchamihigo rendered on 24 September, the ICTR judges state that "cumulative convictions for genocide and crimes against humanity based on the same conduct are permitted, because the crimes contain distinct elements requiring proof of a fact not required by the other".
In theory, "the accumulation of criminal charges offends against the principle of double jeopardy or a substantive non bis in idem" had, however, reminded the judges in 1998 for Jean-Paul Akayesu. And the jurisprudence of the two ad hoc Tribunals is unanimous: "only distinct crimes may justify multiple convictions" (ICTY, Celebici ruling 02/20/01).
Nevertheless, successive jurisprudence will establish that such an accumulation is possible, at a rate of the same fact and on the basis of various provisions of the Statute "if each statutory provision involved has a materially distinct element not contained in the other" and more precisely "if it requires proof of a fact not required by the other" (ICTY, Celebici ruling 02/20/01).
In 1998, the ICTR First Instance Chamber in the Jean Paul Akayesu judgment decided that the accumulation of guilty pleas is not possible "1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did".
In 2000, the ICTR First Instance Chamber will choose to use the "Blockburger test" defined by the Supreme Court of the United States in 1932. According to this principle, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one is whether each provision requires proof of an additional fact which the other does not (ICTY, Kupreskic judgment, 01/14/00.
It asks then that "the various provisions at stake protect different values. But this criterion will be retained only if the first is established.
In the Celebici case, the ICTY Appeal Chamber in January 2001 only retained the requirement of "a materially distinct element not contained in the other. It specified that failing this, "the Chamber must decide in relation to which offence it will enter a conviction" while being based on the most specific provision. (ICTY, Celebici ruling 02/20/01).
Judges Hunt and Bennouna of the ICTY Appeal Chamber announced, in their dissenting opinion in the Celebici ruling, which they found the accumulation of the impermissible guilty pleas.
According to them, "the jurisprudence of the Trial Chambers is far from uniform with respect to this issue" and "most decisions on the issue - with the exception of the Kupreškic, Akayesu and Kayishema and Ruzindana judgements17 - have not been accompanied by reasoned consideration".
Such a decision is not without consequences, they reminded. It depends on: "social stigmatisation inherent in being convicted of a crime", the impact on the sentence to serve (for example, certain legislations take into account the number of crimes committed to decide on an early release), and, finally, "cumulative convictions may also expose the convicted person to the risk of increased sentences and/or to the application of ‘habitual offender' laws in case of subsequent convictions in another jurisdiction.
They consider, finally, that the criterion of the "different elements" should only be applied to the elements having a relationship with the behaviour and the intentions of the defendant.
But the principle has been established. On 16 November 2001, the Appeal Chamber in the Musema ruling already had five cases in which judgments were accumulated on the basis of article 2 (genocide) and 3 (crimes against humanity) of the ICTR Statute.
On 28 November 2007, the ICTR Appeal Chamber confirmed the cumulative judgments of Hassan Ngeze, Jean-Bosco Barayagwiza and Fernand Nahimana for agreement in order to commit genocide, genocide, direct and public incitement to commit genocide and of crimes against humanity (persecution and extermination).
In addition to being an exception to the non bis in idem principle, the accumulation of the guilty pleas should have an influence on the sentence rendered because "in terms of the final sentence imposed, however, the governing criteria is that it should reflect the totality of the culpable conduct (the 'totality' principle),663 or generally, that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate) (ICTY, Celebici ruling 02/20/01).
But the First Instance Chamber has the choice to deliver a sentence for all the infractions or several sentences which will be confounded, accumulated or both. The former article 101 C) of the ICTR Rules of Procedure and Evidence, modified on 14 March 2008, laid out that "the Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.
While the ICTR judges during the Akayesu judgment considered that "it is clear that the practice of concurrent sentencing ensures that the accused is not twice punished for the same acts it can lead to the questioning on the evolution of the practice of the accumulation of the guilty pleas now that this subparagraph has been removed.
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