Cumulation of Offenses in International Criminal Law: A Troublesome Inheritance of the Second World War

Under the statutes of all international criminal courts and tribunals in operation, more than one penal provision may punish the same conduct. Murder, for example, is punishable as a war crime, as a crime against humanity and as genocide. In this case, the question arises as to whether the act that breaches several criminal provisions in reality violates only one. The approach followed in case law is a very formal one which ends up providing no limiting effects to cumulative convictions. Plausibly, this is a consequence of a line of thought that emerged in the aftermath of the Second War World and advances a primarily ‘retributive’ idea of punishment for serious international crimes, where there is no room for the perpetrator’s rehabilitation. In this author’s view, bearing in mind the dramatic development of human rights’ protection over the years, such an idea should be revised, going so far as to favor a more substantive approach to the matter of cumulation.