The International Criminal Court and the Čelebići Test: Cumulative Convictions Based on the Same Set of Facts from a Comparative Perspective

Abstract

In the Katanga and Bemba trial judgments, the International Criminal Court was faced with the problem of how to resolve cumulative convictions based on the same set of facts. The Court decided to adopt the Čelebići test, which was developed and applied predominantly by the ad hoc international tribunals and based on US case law. The present article challenges the suitability of this test in international criminal law, pointing out the problems it raises in international and national criminal law. In this regard, evidence is furnished that this test is not prevailing in the United States Supreme Court case law, and other tests and principles used in domestic criminal law are examined. Ultimately, a test meant to address the possible breach of the ne bis in idem principle cannot rely exclusively on speciality and implementing additional principles such as consumption or subsidiarity may enhance international standards, adding much needed nuances in the intricate task of determining separateness of offences.