6 - Concurrent convictions and sentencing

Summary

This chapter deals with a number of practical questions concerning forms of responsibility that trial chambers must address when drafting a judgement. As the preceding chapters have demonstrated, the jurisprudence of the ad hoc Tribunals has identified various forms of responsibility enshrined in Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute (‘Article 7/6(1)’), on the one hand, and Article 7(3) of the ICTY Statute and Article 6(3) of the ICTY Statute (‘Article 7/6(3)’), on the other: planning, instigating, ordering, committing (including participating in a joint criminal enterprise, or JCE), aiding and abetting, and superior responsibility through the failure to prevent or the failure to punish subordinate criminal conduct. The chambers have consistently permitted the ad hoc Prosecutors to charge several – or indeed all – of these forms of responsibility simultaneously under the same count of the indictment and in respect of the same crime. Section 6.1 of this chapter sets forth the Tribunals' law and practice on how a chamber goes about choosing, from among simultaneously charged forms of responsibility, that which best encapsulates the accused's contribution to the crime. The section also explores the extent to which the chamber must examine the accused's liability pursuant to those forms of responsibility it does not ultimately select to describe his conduct, and whether it may convict an accused concurrently for the same crime under two or more different forms of responsibility.