Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Part V
On cumulative convictions, the SCC is correct that the Čelebići test is the only game in town on the matter (and a rare example where a shopping trip to the international level was warranted), regardless of the controversy that has always surrounded the structural aspects of the test, the modalities of its application and its very essence (convicting a person for more than one offense on the basis of the same wrongful act (i.e. the same killing can attract a conviction for murder and extermination as crimes against humanity, willful killing as a war crime, murder under domestic law and genocide). The SCC is also correct about – what should have been obvious to anyone in the legal profession but nonetheless correct – the fact that when analyzing offenses for a cumulative conviction the court must look at and compare the material (I have no idea what “abstract” would mean in this case as these elements are very much concrete) elements of these offenses (it is done so under Čelebići to ensure that the elements do not differ to require separation and a subsequent separate proof of facts and therefore cannot be subsumed). Cumulative convictions brush against the prohibition of double jeopardy and are therefore very risky and as such require the sharpest of rationales from courts. To analyze whether the SCC worked through this with the sharpest of knives, the means of the Summary are insufficient and the full text of the Appeal Judgment is needed. Based on the summary of the SCC's analysis regarding the matter and in the absence of the full text of the Appeal Judgment it does not appear that the finding that "the Trial Chamber improperly focused" is warranted; rather, the SCC might have taken a different but equally correct approach to the issue which is one of the rare occasions where two conflicting but equally correct answers to the same question are possible (this is due to the volatility of the Čelebići test and its conduct-driven nature).