' For the text of the Statute of the International Criminal Court see ILM, 1998, p. 1002 ff. ² In this regard, see K_RESS, "Penalties, Enforcement and Cooperation in the International Criminal Court Statute (Parts VII, IX, X)", European Journal of Crime, Criminal Law and Criminal Justice, 1998, p. 442 ff.; J_EGGINS, "Art. 78", in T_FJFFTERER (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden, 1999, p. 999; B_ING J_IA, "The Differing Concepts of War Crimes and Crimes against Humanity in International Criminal Law", in GOOD_WFN-G_ILL and T_ALMO_N (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie, Oxford, 1999, p. 243 ff:; Atvt_BO_S and W_IRTH, in Ku^p and SLATER (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. 11, The International Criminal Tribunal for Rwanda 1994-1999, Antwerp/Groningen/Oxford/Vienna, 2001, p. 701 ff:; C_AIANELLO, "II processo nella giustizia internazionale: casi giurisprudenziali dall'esperienza dei tribunali ad hoc", in I_LLITMIN_ATI, S_TO_RTO_NI and V_IRG_ILIO (eds.), Crimini internazionali tra diritto e giustizia, Torino, 2000, p. 137 ff.; K_ITT_IC_HAIRS_AREE, International Criminal Law, New York, 2001, p. 308 ff.; W_ALTHER, "Cumulation of Offences", in C_ASSESE,

G_AETA and J_ONES (eds.), The Rome Statute of the (International Criminal Court Commentary, Viol. I, Oxford, 2002, p. 475 ff. ³ We refer, in particular, both to the four Geneva Conventions of 1949 concerning the war victims (cf. UNTS, Vol. 75, p. 31 ff.) - including the two Additional Protocols of 12 December 1977 (respectively reprinted in ILM, 1977, p. 1391 ff. and ILM, 1977, p. 1442 ff.) - and to the Hague Convention No. IV of 1907 as well as its attendant Regulations concerning the conduct of hostilities (reprinted in AJIL, 1908, p. 90 ff.). About war crimes see inter alia B_ALLADORE P_ALUERi, Diritto bellico, 2nd ed., Milano, 1954, p. 362 ff.; SPERDUTi, Crimini internazionali, EdD, Vol. XI, Milano, 1962, p. 343 ff.; S_{CHWARZENBERGER}, International Law as Applied by International Courts and Tribunals, Vol. II, The Law of Armed Conflict, London, 1968, p. 462 ff.; F_RANCIONI, "Crimini internazionali", Digesto delle discipline pubblicistiche, Vol. IV, Torino, 1989, p. 468 ff.; L_AMBERTI Z_ANARDI and V_ENTURINI (eds.), Crimini di guerra e competenza delle giurisdizioni nazionali, Milano, 1998; A_BI-S_AAB, "Les crimes de guerre", in A_SC_ENSIO, D_ECAUX and PELLET (eds.), Droit international penal, Paris, 2000, p. 265 ff.; M_ERO_N, War Crimes Law Comes of Age, New York, 1998; G_REPPI, I crimini di guerra e contro l'umanita nel diritto internazionale, Torino, 2001, p. 59 f�'.; P_AUST, "Content and Contours of Genocide, Crimes against Humanity, and War Crimes", in Y_EE and T_IEYA (eds.), International Law in the Post-Cold War World, Essays in Memory of Li Haopei, London, 2001, p. 293 ff.; A_bi-Saab, "The Concept of `War Crimes"', ibid., p. 99 ff.

⁴About crimes against humanity cf. inter alia ScttwELe, "Crimes against Humanity", BYIL, 1946, p. 178 ff.; S_PERDUT1, cit. supra note 3, p. 345; F_RANCIONI, cit. supra note 3, p. 471; B_ASSIOUNI, Crimes against Humanity in International Criminal Law, The Hague, 1999; B_ETT_ATI, "Le crime contre I'humanit6", in A_SCENsio, D_EC_AU_X and PELLET (eds.), cit. supra note 3, p. 293 ff.; P_AUST, cit. supra note 3, p. 290; GREppI, cit. supra note 3, p. 108 ff:; M_ETT_RAUX, "Crimes against Humanity in the Jurisprudence of the International Tribunals for the former Yugoslavia and for Rwanda", Harvard ILJ, 2002, p. 237 ff:; C_ASSESE, "Crimes against Humanity", in C_ASSESE, G_AETA and JO_NES (eds.), cit. supra note 2, p. 353 ff.

⁵ See History oj United Nations War Crimes Commission and the Development ojthe Laws oj War, London, 1948, p. 135. ⁶ Prosecutor v. Tadic, Case No. 1T-94-1-AR72, Decision on the defence motion of interlocutory appeal on jurisdiction of 2 October 1995, 1LM, 1996, p. 32 ff., para. 76. See VnN S_CHAACK, "The Definition of Crimes against Humanity: Resolving the Incoherence", Columbia JTL, 1999, p. 787 ff. ⁸ In the Article at issue, in particular, crimes against humanity are defined only with regard to the existence of a widespread or systematic attack against a civilian population and the mental state of the individual defendant. See on this point VnN SC_HAACK, ibid., p. 787 ff. ⁹ See B_FNG J_IA, cit. supra note 2, p. 258. ¹⁰ Prosecutor v. Kunarac, Kovac and Zoran Vukovic, Case No. IT-96-23, Judgement of 22 February 2001, para. 556. All judgements ofthe ICTY and ICTR can be found in the Website respectively at www.icty.org and www.ictr.org.

¹¹ Prosecutor v. Tadic, Case No. IT-94-1-T, Judgement of 14 July 1997, para. 73. ¹² Prosecutor v. Tadic, Case No. IT-94-1, Appeals Chamber, Judgement of 26 January 2000, para. 69. In its Separate and Dissenting Opinion, Judge Cassese, a supporter of the hierarchy of crimes, maintains that: "... Article 8 of the ICC Statute confers jurisdiction over all war crimes and then adds that that jurisdiction should be exercised 'in particular' over large scale or systematic war crimes. This is quite understandable. The drafters of the Statute intended to spell out the notion that in principle the ICC should concentrate on the most egregious instances of war crimes, while less categories of such crimes should be prosecuted and tried by national court to the greatest extent possible... the conclusion is therefore warranted that the ICC Statute in no way affects the customary rules on war crimes as well as those contained in the Statute of the ICTY or the ICTR..." (ibid., para. 13). The ICTY stressed again that it is not possible to distinguish the two categories of offences inter alia in the case of Prosecutor v. Furundiija (Case No. IT-95-17/1, Appeals Chamber, Judgement of 21 July 2000, paras. 240-243). In literature cf. D_ANNER, "Construing a Hierarchy of Crimes in International Criminal Law Sentencing", Virginia Law Review, 2001, p. 415 ff.; FxuLL�, "Are Crimes against Humanity more Serious than War Crimes?", EJIL, 2001, p. 329 ff.

¹³ Cf. Article 101 (A) of the Rules of Procedure and Evidence of the ICTY and in similar terms Article 101 (C) of those of the ICTR. ¹⁴ As was held by the Trial Chamber in the Tadic case, on the other hand, also "the practice of courts in the former Yugoslavia does not delimit the sources upon which the Trial Chamber may rely in reaching its determination of the appropriate sentence for a convicted person" (cit. supra note 1 1, para. 9). ¹⁵ In this perspective, at any rate, appears interesting the judgement of the International Military Tribunal at Nuremberg, which stated that: "[t]he truth remains that War Crimes were committed on a vast scale, never before seen in the history of war. They were perpetrated in all the countries occupied by Germany, and on the high seas, and were attended by every conceivable circumstance of cruelty and horror. War Crimes were committed when and whenever the Führer and his close associates thought them to be advantageous. They were for the most part the result of cold and criminal calculation" (see Judgment of the International Military Tribunal sitting at Nuremberg, 30 September 1946, reported in The Trials of German Major War Criminals, London, 1950, Pt. 22, p. 449). As has been observed in the legal doctrine: "[t]his passage suggests three points. First, war crimes might occur on a vast scale. Although scale was not mentioned by the 1MT as an inherent element of such crimes, only offences on a vast scale had caught the attention of the IMT, which treated them as war crimes. Secondly, the IMT only took cognisance of those war crimes `of cruelty and horror'. Thirdly, war crimes could be organized and systematic through 'cold and criminal calculation"' (B_ING J_IA, cit. supra note 2, p. 246). 16 _{See BING JIA}, ibid., p. 269. ¹⁷ See in this regard Fttu�m, cit. supra note 12, p. 333 ff

¹⁸ See in this regard L_EMKIN, "Genocide as a Crime under International Law", AJIL, 1947, p. 145 ff.; L_IPPMANN, "Genocide", in B_ASS_IO_UNI (ed.), (International Criminal! Law, Ardsley, 1999, p. 589 f£; Sct�nBns, Genocide in (International Law: The Crimes of Crimes, Cambridge, 2000; P_AUST, cit. supra note 3, p. 289; C_ASS_ESE, "Genocide", in C_ASSES_E, G_AET_A and JONEs (eds.), cit. supra note 2, p. 335 ff. ¹⁹ The Convention is reprinted in UNTS, Vol. 78, p. 277 ff.

²⁰ See, inter alia, G_EERDS, Zur Lehre von der Konkurrenz im Strafrecht, Hamburg, 1961; P_UPPE, Idealkonkurrenz und Einzelverbrechen, Berlin, 1979; Marini, "Concorso di reati e di pene (Diritto penale)", Nss. DI, App. II, Torino, 1980, p. 314 ff.; LnF_'nvE and Scott, Criminal Law, St. Paul, Minn., 1986, p. 125 ff.; P_ACILEO, "Concorso di reati", EG, Vol. VII, 1988; M_ANTOVANI, Diritto penale, 4th ed., Padova, 2001, p. 478 ff.; F_ORrt_ASAttt, I principi del diritto penale tedesco, Padova, 1993, p. 461 ff.; F_IANDACA and Musco, Diritto penale - Parte enerale, Bologna, 1995, p. 593 ff. In this sense see, inter alia, MnrrrovwN�, _Cit. supra note 20, p. 492; DE FRANCESCO, Concorso apparente di norme, Digesto delle discipline penalistiche, 1988, p. 416 ff. ²² Such a principle has been used in the case of Blockburger v. United States (284 US 299, p. 304; 52 S. Ct. 180, 1932), in which the Supreme Court of the United States held: "The applicable rule is that 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". ²³ See in particular MANTOVANI, cit. supra note 20, p. 492. ²⁴ Such a principle - which corresponds to the common law doctrine of the "lesser included offence" - has been used, inter alia, by the European Commission and the European Court of Human Rights with regard to the application of Article 3 of the European Convention on Human Rights, which prohibits torture, inhuman treatment or punishment and degrading treatment or punishment. The Court and the Commission, in particular, have never applied the three provisions cumulatively, because the various norms under Article 3 all pursue the same goal and safeguard the same basic values, even though torture is a more serious breach than the other two. Consequently, if an action is contrary to both the proscription of inhuman treatment or degrading treatment and to that of torture, it is classified as the most serious breach. The European Court followed such an approach in the Aksoy case (Aksoy v. Turkey, Judgment of 18 8 December 1996, Reports of Judgements and Decisions, 1996-Vl, p. 2279 ff.). In this case the Court, after finding that the facts disputed amounted to torture, held that in view of the gravity of this conclusion, it was not necessary to examine the applicant's complaints of other forms of i Il-treatment. ²⁵ On the proccdural ne bis in idem principle in international law see, inter alia, Moax�sotv, "Double Jeopardy and International Law: Obstacles to Formulating a Gcneral Principle",

Nordic Journal of International Law, 1995, p. 26I ff:; V_AN D_EN W_YNG_AERT and S_TESSENS, "The International non bis in idem Principle: Resolving Some of the Unanswered Questions", ICLQ, 1999, p. 133 ff.; V_AN DEN W_YNGAERT and ONGE_NA, "Ne bis in idem Principle, Including the Issue of Amnesty", in C_ASS_ES_E, G_AETA and J_ONES (eds.), cit. supra note 2, p. 705 ff.; K_ITT_IC_HAISARE_E, cit. supra note 2, p. 288 ff. ²⁶ See in this sense, inter alia, Corrso, I fatti giuridici processuali penali, Milano, 1955, p. 101 ff.; SIN_ISC_ALC_O, Il coneorso apparente di norme nell'ordinamento penale italiano, Milano, 196 1, p. 62 ff.; M_ANTOVANI, Concorso e conflitto di norme nel diritto penale, Bologna, 1966, p. 394 ff. and p. 421 ff.; W_ESTEN, "The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences", Michigan Law Review, 1980, p. 1001 ff.; CoRDEtto, Procedura penale, Milano, 1995, p. 1047; PAPA, Le qualificazioni giuridiche multiple nel diritto penale, Torino, 1997, p. 3I ff. ²⁷ D_E LucA, I limiti soggettivi della cosa giudicata penale, Milano, 1963, p. 73 ff.; C_OPPI, Reato continuato e cosa giudicata, Napoli, 1969, p. 322 ff.; Lozzi, Proftli di una indagine sui rapporti tra "ne bis in idem" e concorso formale di reati, Milano, 1974, p. 57 ff.; S_ES'rn, "'Ne bis in idem' e concorso formale di reati al vaglio della Corte Costituzionale", Giustizia penale, 1977, p. 18 1; V_OENA, "`Ne bis in idem' e concorso formale di reati", Giur. It., 1976, VoI. II, p. 32I ff. ²⁸ In this regard see, inter alia, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement of 2 September 1998, para. 462. ²⁹ Indeed, in the case of Prosecutor v. Krnojelac (Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment of 24 February 1999, paras. 5 ff.), the ICTY observed that the issue of cumulation of offences had nothing to do with double jeopardy which was concerned with successive prosecutions upon different charges arising out of the same facts, and not with the prosecution of such charges in the same Trial. The issue, on the contrary, would be relevant only to the question of penalty. It is clear, in this author's view, that the Tribunal does not take into account the substantive ne bis in idem principle. As already

mentioned, in fact, according to such a principle the perpetrator cannot be punished more than once, in all cases of apparent concurrence of crimes. The real problem in this case, however, does not concern the penalty to apply, but the identification of the prevailing.provision. ³⁰ In this regard see, in particular, MORRIS and SHARP (eds.), The (International Criminal Tribunal for Rwanda, New York, 1998, p. 343 ff.; V_AN D_EN W_YNG_AE_RT and O_NGENA, cit. supra note 25, p. 717 ff.; K_ITT_IC_HAIS_AREE cit. supra note 2, p. 288 ff. ³¹ Prosecutor v. Bagosora, Case No. ICTR-96-7-D, Decision on the Application by the Prosecutor for a Formal Request for Deferral of 17 May 1996. In the decision at issue, in particular, the Tribunal observed that: "... in the case of Theoneste Bagasora, as Belgian law does not contain any provision concerning genocide or crimes against humanity, it was only for murder and serious violations of the Geneva Conventions of 12 August 1949 and Additional Protocols I and II of 8 June 1977 that the Belgian authorities were able to prosecute him, given the facts that he is charged with. Therefore, should the Prosecutor subsequently wish to

prosecute Theoneste Bagasora for the same facts, characterizing them as genocide and cirmes against humanity, he would not be able to do so, if Theoneste Bagasora had already been tried by Belgian jurisdictions" (ibid., para. 13). ³ On the practice of the international criminal tribunals regarding the substantive ne bis in idem principles see infra section 6. 3On the ne bis in idem principle in the European Convention on Human Rights see R_OTT_OLA, "La ratifica del protocollo addizionale n. 7 alia Convenzione europea dei diritti dell'uomo", RDI, 1988, p. 1360 ff.; G_IARDA, "Si amplia l'inventario dei diritti dell'uomo", 11 corriere giuridico, 1990, p. 672 ff.; MARCHETri, "Commcnto articolo per articolo", La legislazione penale, 1991, p. 227 ff.; P_EDR.azzi, "Convenzione europea dei diritti dell'uomo e protocollo addizionale n. 7: una nuova tappa nella tutela dellc garanzie fondamentali", RIDU, 1992, p. 453 ff.; F_ROWEIN and P_EUKERT, Europaische Menschenrechtskonvention, Kommentar, Engel/Kehl/Strasburg/Arlington, 1996, p. 862 ff.; VA_N DICK and Vnrr HooF, Theory and Practice of the European Convention on Huntan Rights, The Hague, 1998, p. 690 ff.; S_PANGH_ER, "Protocol 7, Article 4. II principio del ne bis in idem", in B_ARTO_LE, CONFORTi and R_AimONDI (eds.), Commentario alla Convenzione europea per la tutela dei diritti dell'uomo e delle libertafondamentali, Padova, 2001, p. 957 ff. ³⁴ In this regard see, inter alia, JOSEPH, S_HULTZ and CAS_TAN, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, New York, 2000, pp. 337-338. ³⁵ Grandinger v. Austria, Judgement of 23 October 1995, Series A, No. 238-C, p. 50 ff. ³⁶ Oliveira v. Switzerland, Judgement of 30 July 1998, Reports of Judgments and Decisions, 1998-V, p. 1990 ff. ³⁷ The use of the term offence in the formulation of Article 4 of Protocol 7 seems to refer to the legal qualification of the crime, and not to the fact. However, as has been observed in literature, while the terminology is not appropriate, the voluntas legis seems quite clear: the purpose is to guarantee that a person is not tried or punished again in criminal proceedings under the jurisdiction of the same State for a fact for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. The Explanatory Report, on the other hand, clarifies that the ne bis in idem principle, as ruled by the Protocol No. 7, is the same principle included in the European Convention on the International Validity of Criminal Judgments and in the European Convention on the Transfer of Proceedings in Criminal Proceedings: such Conventions, in defining the ne bis in idem principle, refer -

respectively in Articles 53 and 35 - to the previous fact, regardless of its legal qualification �MARCHETTI, cit. supra note 33, p. 250). ^3$ See supra section 4.

³⁹ See in this sense V_AN D_EN W_YNG_AERT and O_NG_ENA, _Cit. supra note 25, p. 715. Furthermore, in the same perspective, it has to be remembered the Dissenting Opinion of Judge Repik in the Oliveira case, according to which: "... no difference can be seen between the Grandiger case and the Oliveira case that can justify these two wholly conflicting decisions. In both cases, owing to a mistake by the court that first convicted the accused, one aspect of the actus reus was not taken into account in the conviction. Lastly, in both cases, the same conduct, aggravated by the aspect that the first court had omitted to take into account, led to a second conviction under a different legal qualification" (cit. supra note 36). ⁴⁰ The Court, on the other hand, observed that: "it would be...more consistent with the principles governing the proper administration of justice for sentence in respect of both offences, which resulted from the same criminal act, to have been passed by the same court in a single set of proceedings" (Oliveira v. Switzerland, cit. supra note 36, para. 27). ⁴¹ Article 14(7), in words similar to those used by the European Convention on Human Rights, states that: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country". Also in this case it is possibile to assert that the provision at issue, despite the use of the term offences, refers to the previous fact, regardless of its legal qualification. Regarding this issue, at any rate, see also BO_SSUYT and H_UMPHREY (eds.), Guide to the "Travaux preparatoires" oj the International Covenant on Civil and Political Rights, DordrechtBoston/Lancaster, 1987, pp. 316-317. '^z Nieto _v. Uruguay, Communication No. 92/1981, UN Doc. A/38/40, 1983, p. 201.

the International Military Tribunal at Nuremberg convicted many defendants both of war crimes and crimes against humanity. Yet, this was not surprising on three grounds: "First, at that time the class of crimes against humanity had just emerged and there were concerns about whether by convicting defendants of such crimes the courts would be applying ex post facto law. Secondly, and as a consequence, the relevant criminal provision at the time did not draw a clear-cut distinction between the two classes of crimes. Thirdly, the general concepts of international criminal law were still in a state of flux" (Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Judgement of 14 January 2000, paras. 675-676). ⁴⁴ With regard to the problem of cumulation of offences in international criminal law see supra note 2. ⁴⁵ As was observed by the ICTY in the Delalié case: "Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be provcn. 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" (Case No. IT-96-21-A, Judgement of 20 February 2001, para. 400). ⁴⁶ prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber, Decision on Defence Motion on Form of the Indictment of 14 November 1995, para. 24; Prosecutor v. Delali6, Case No. IT-96- 21-T, Decision on Motion by the accused Zejnil Delalic based on Defects in the Form of the Indictment of 2 October 1996, para. 24; Prosecutor v. Kupreskic, Case No. IT-95-16-PT, Decision on Defence Challenges to Form of the Indictment of 15 May 1998; Prosecutor v. Krnojelac, cit. supra note 29, para. 5 ff.; Prosecutor v. Kvo6ka et al., Case No. IT-98-30-PT, Decision on Defence Motions on the Form of the Indictment of 12 April 1999, para. 47. It is worth remembering, at any rate, that the issue of cumulation of offences emerged also in the Mrksic, Radic, Sljivancanin and Dokmanovi6 case (Case No. IT-95-13a), "Vukovar Hospitaf', but the ICTY did not render any judgement. Following the death of Slavko Dokmanovic, who

was the only one to be brought to trial, the Trial Chamber issued an order terminating the proceedings against him on 15 July 1998. In this regard see, in particular, the transcrpits of the sittings of 21 April 1998 (see http://www.un.org/icty/transel3a/980421it.htm, p. 1885 off and p. 1915 ff.), of 17 June 1998 (see http://www.un.org/icty/transel3a/980617it.htm, p. 3738 ff) and of 26 June 1998 (see http://www.un.org/icty/transel3a/980625it.htm, p. 4186 ff:). ⁴⁷ Prosecutor v. Kupreskic, cit. supra note 43. ⁴⁸ See supra section 4. ⁴⁹ In particular, the Chamber explains that when each of the two provisions requires proof of a fact which the other two do not require, civil law courts tend to speak of "reciprocal speciality" but that the reciprocal specialty doctrine tends to the same result as the Blockburger test. (Prosecutor v. Kupreski6, cit. supra note 43, para. 685). Thus it is possible to speak indifferently of the Blockburger test or of reciprocal speciality, as we prefer. ⁵⁰ The Chamber clarifies that such a notion corresponds to the common law doctrine of the "lesser included offence" (ibid., para. 687). ⁵¹ Ibid., para. 683. ⁵² �bid., para. 688. ⁵³ Ibid., para. 682. ⁵⁴ Ibid., paras. 693-695.

⁵⁵ Ibid., para. 707.

⁵⁶ See supra section 2.3. ⁵⁷ See Prosecutor v. Delali6, cit. supra note 45, paras. 412-413 (see ibid., Separate and Dissenting Opinion of Judges Hunt and Bennouna, paras. 32-38); Prosecutor v. Kunarac, Kova6 and Zoran Vukovic, cit. supra note 10, paras. 544 ff.; Prosecutor v. Kordic and Čerkez, Case No. IT-95-14/2-T, Judgement of 26 February 2001 paras. 810 ff; Prosecutor v. Kupreskic, Case No. IT-95-16, Appeals Chamber, Judgement of 23 October 2001, paras. 379 ff.; Prosecutor v. Jelisic, Case No. 1T-95-10, Appeals Chamber, Judgement of 5 July 2001, paras. 78 ff.; Prosecutor v. Krstic, Case No. IT-98-33/1-T, Judgement of 2 August 2001, paras. 655 ff.; Prosecutor v. Kvocka et al., Case No. IT-98-30/1-T, Judgement of 2 November 2001, paras. 212 ff.; Prosecutor v. Kunarac, Kova6 and Zoran Vukovic, Appeals Chamber, Case No. IT-96- 23, Judgment of 12 June 2002, paras. 167 ff.; Prosecutor v. Naletilie and Martinovi6, Case No. IT-98-34-T, Judgement of 31 March 2003, para. 716 ff. ⁵⁸ Such an approach, in particular, has been used by the ICTY since the judgement rendered in the case of Prosecutor v. Kunarac, Kova6 and Zoran Vukovi6 (cit. supra note 10, para. 556). ⁵⁹ Prosecutor v. Akayesu, cit. supra note 28, paras. 416 ff. ^bo Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement of 21 May 1999, paras. 625 ff. ⁶¹ Prosecutor v. Rutaganda, Case No. ICTR-96-13-T, Judgement of 6 December 1999, paras. 108-109 and 289-299. ^bz prosecutor v. Musema, Case No. ICTR-96-13, Judgement of 27 January 2000, paras. 108- 119 and paras. 289-299. ⁶³ The matter of ideal concurrence of offences, in particular, is treated in Articles 92 and 93 of the Rwanda Penal Code. According to Article 92: "II y a concours d'infractions lorsquc plusieurs infractions ont ete commises par le meme auteur sans qu'une condamnation soit intervenue entre ces infractions". According to Article 93, on the other hand: "II y concours

ideal : 1 ) lorsque le fait unique au point de vue materiel est susceptible de plusieurs qualifications; 2) lorsque 1'action comprend des faits qui, constituant des infractions distinctes, sont unis entre eux comme procedant d'une intention d6lictueuse unique ou comme etant les uns des circonstances aggravantes des autres. Seront seules prononcees dans le premier cas les peines determinees par la qualification la plus severe, dans le second cas les peines prevues pour la repression de l'infraction la plus grave, mais dont le maximum pourra etre alors eleve de moitie". ⁶⁴ Prosecutor v. Akayesu, cit. supra note 28, para. 468. ^bs lbid. para. 470. ⁶⁶ See in this regard C_AIANELLO, cit. supra note 2, p. 150-151. ⁶⁷ Prosecutor v. Kayshema and Ruzindana, cit. supra note 60, paras. 648-650.

⁶⁸ See W_ALTHER, cit. supra note 2, p. 491. ⁶⁹ Prosecutor v. Rutaganda, cit. supra note 61, para. 1 19. ⁷⁰ Prosecutor v. Musema, cit. supra note 62, para. 299. The approach used by the ICTR in Musema with regard to the problem of cumulation of offences has been recently followed by the same Tribunal in the case of Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement of 15 May 2003, paras. 408-409. (See ibid. the Dissenting and Separate Opinion of Judge Pavel Dolenc). ⁷¹ The issue of the consequences of the cumulation of offences for the charging process is beyond the scope of this Article. In this regard see W_ALTHER, cit. supra note 2, p. 493. ⁷² See in this regard A_SHWORTH, Sentencing in Criminal Justice, London/Dublin/Edinburgh, 2000, p. 217 ff.; K_ITT_ICHAISAREE, cit. supra note 2, p. 321 ff.; W_ALTrI_ER, cit. supra note 2, p. 485 ff.; S_CHABAS, Penalties, in C_ASSES_E, G_AETA and J_ONES (eds.), cit. supra note 2, Vol. 11, p. 1497 ff., in particular pp. 1529-1530. '³ See supra section 2.3. ⁷⁴ Prosecutor v. Akayesu, cit. supra note 28, paras. 464-466; Prosecutor v. Furundzija, Case No. 1T-95-17/1, Judgement of 10 December 1998, paras. 292 ff.; Prosecutor v. Tadic, Case No. IT-94-1, Judgement of 11 November 1999, para. 32; Kupreskic, cit. supra note 43, paras. 713- 719; Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement of 24 March 2000, para. 153; Prosecutor v. Ruggiu, Case No. ICTR-97-32-1, Judgement of 1 June 2000, para. 81; Prosecutor v. Milan Simic, Case No. IT-95-9/2, Judgement of 17 October 2002, paras. 102 ff. '^S Prosecutor v. Kambanda, Case No. ICTR-97-23, Judgement of 4 September 1998, paras. 102-109; Prosecutor v. Jelisi6, Case No. ICTY-95-10, Judgement of 14 December 1999, para. 137 ; Prosecutor v. Serushago, Case No. ICTR-98-39-S, Judgement of 5 February 1999, p. 15; Prosecutor v. Blaskic, Case No. ICTY-95-14, Judgement of 3 March 2000, para. 807; Prosecutor v. Krstie, cit. supra note 57, para. 725; Prosecutor v. Mucic et al., Case No. IT-96-

21, Judgement of 9 October 2001, para. 43; Prosecutor v. Vasiljevic, Case No. IT-98-32-T, Judgement of 29 November 2002, paras. 269 ff.; Prosecutor v. Semanza, cit. supra note 71, ? arans. 554 ff.; Prosecutor v. Naletili6 and Martinovi6, cit. supra note 58, paras. 743 ff. ⁶ Prosecutor v. Blaskic, ibid. ⁷⁷ Prosecutor v. Furundi^ya, cit. supra note 74. For a critical review of the practice of imposing concurrent sentences for collateral or separate offences in the case at issue see, inter alia, A_SHKIN, "The International War Crimes Trial of Anto Furundzija: Major Progress Toward Ending the Cycle of Impunity for Rape Crimes", Leiden JIL, 1999, p. 936 ff. ⁷⁸ Ibid., para. 295. '⁹ Prosecutor v. Kupreskic, cit. supra note 43, para. 718. According to the ICTY, furthermore, if the Trial Chamber finds that: "by a single act or omission the accused has not perpetrated two offences under two distinct provisions of the Statute but only one offence, then the Trial Chamber will have to decide on the appropriate conviction for that offence only. For example, if the more specialised offence, e.g. genocide in the form of murder, is made out on the evidence beyond a reasonable doubt, then a conviction should be recorded for that offence and not for the offence of murder as a war crime. In that case only one conviction will be recorded and only one sentence will be imposed" (ibid., para. 719). ⁸⁰ Cf W_ALTHER, _Cit. supra note 2, p. 487.

⁸¹ Prosecutor v. Delali6, cit. supra note 45, para. 429. In the same case the Appeals Chamber further observes that: "In the case of two legally distinct crimes arising from the same incident, care would have to be taken that the sentence does not doubly punish in respect of the same act which is relied on as satisfying the elements common to the two crimes, but only that conduct which is relied on only satisfy the distinct element of the relevant crimes" (ibid., para. 769). ⁸² On this point see T^pj_FFrERER (ed.), cit. supra note 2, p. 1001; W_ALTHER, cit. supra note 2, p. 493 ff.; KiTTicHAiSAREE, cit. supra note 2, p. 323. ⁸³ In this sense see GREEN, "Grave Breaches or Crimes Against Humanity?", US Air Force Academy Journal of Legal Studies, 1997-1998, p. 19 ff.

⁸⁴ See F_ENRICK, "Should Crimes against Humanity Replace War Crimes?", Columbia JTL, 1998, p. 767 ff.