Cumulative Charging and Convictions in the ICTY and ICTR Jurisprudence

The prevalent practice of cumulative charging and subsequent convictions under the ICTY and ICTR jurisprudence has given rise to concerns over lack of rules governing the permissibility of cumulative charging and its potential prejudice to the defendants. The most serious concern focuses on the potential for multiple punishment for the same offense in violation of double jeopardy rules. More specifically defined elements found in the ICC Elements of Crimes will undoubtedly provide better criteria to assess criminal liabilities under each provision. They do not, however, automatically lead to clearer delimitation of each provision, and neither the ICC Statute nor the Elements of Crimes addresses the relationship among different provisions with overlapping elements. This note attempts to assess applicable rules and the scope of permissibility for cumulative charging. This note is concerned, in particular, with cases in which unitary conduct is chargeable as violations of a number of seemingly different international criminal prohibitions. In certain circumstances, if all possible charges are brought and multiple convictions secured, this may yield a case of cumulative punishment. The ICTY and ICTR jurisprudence reveals that a mechanical application of the elements test is sometimes misguiding and generally insufficient in limiting cumulative charging, and an additional test is necessary. Variations of the elements test and the value test adopted by some Chambers recognize such flaws in the elements test, but do not succeed in overcoming them. This note argues that the civil law concept of the rule of consumption, which focuses on a substantive analysis of the defendant's culpability, could offer limiting rules on cumulative charging and conviction under international criminal law, and mitigate the prejudice to the defendant brought on by overlaps in international criminal prohibitions.