International criminal law by Cassese Antonio

Author:Cassese, Antonio
Language: eng
Format: epub
Tags: International offenses, Criminal procedure (International law)
Publisher: Oxford ; New York : Oxford University Press
Published: 2003-09-05T16:00:00+00:00

ingredient, the prosecution may deem it expedient to also charge the crime, either alternatively, as suggested in Kupreskic and others (§727) or cumulatively, as held in Delalicand others {Appeal) (§400).

In this last-mentioned case the Appeals Chamber ruled as follows:

Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proved. The Trial Chamber is better poised, after the parties' presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice of both this Tribunal and the ICTR. (§400.)

Judges Hunt and Bennouna, in their Separate and Dissenting Opinion, concurred with the majority on this point (§12). They offered, however, a more convincing reasoning:

As a practical matter, it is not reasonable to expect the Prosecution to select between charges until all of the evidence has been presented. It is not possible to know with precision, prior to that time, which offences among those charged the evidence will prove, particularly in relation to the proof of differing jurisdictional pre-requisites . . . Further,. . . the offences in the Statute do not refer to specific categories of well-defined acts, but to broad groups of offences, the elements of which are not always clearly defined and which may remain to be clarified in the Tribunal's jurisprudence. The fundamental consideration raised by this issue is that it is necessary to avoid any prejudice being caused to an accused by being penalised more than once in relation to the same conduct. In general, there is no prejudice to an accused in permitting cumulative charging and in determining the issues arising from accumulation of offences after all of the evidence has been presented . . . [However] there may be specific examples of obviously duplicative cumulative charging, where there is no reason in the particular circumstances that the Prosecution needs to see how the evidence turns out before selecting the most relevant charge. In those circumstances it may be oppressive to allow cumulative charging. (§12 and n. 14.)

It may instead happen that, although, as in the case just mentioned, each of two rules sets out different requirements, the offence in fact meets all the requirements of both rules. In this case, the crime will amount to an offence under both rules. For instance, the rule on murder of civilians as a crime against humanity requires an element (the act must be part of a widespread or systematic practice) that the rule on murder of civilians as a war crime does not require. This last rule, in its turn, requires an element (that the murder be connected with an international or an internal armed conflict) that the other rule does not require (at least under customary international law). Hence, if the murder has been perpetrated within an internal armed conflict as part

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