The Appeals Chamber, after an analysis of earlier jurisprudence, affirmed that a Trial Chamber can consider evidence given by an accomplice, but must be cautious in doing so (paras 203-205). However, in such a case, the Trial Chamber has to analyse the possible motives of the witness to lie; the mere fact that a witness is an accomplice is not sufficient to reject his or her testimony (para. 206). This applies to witnesses who are suspected of taking part in the same criminal activities as the accused; a Trial Chamber does not err if it does not take the same cautious approach to witnesses who are suspect of criminal activities of a similar legal nature as the accused, but without a factual relation to the charges against the accused (paras 233-234):

233.    In Niyitegeka, the Defence submitted that one of the witnesses, Witness KJ, was an accomplice and that the Trial Chamber should treat his evidence with suspicion. The Trial Chamber, addressing this submission, noted that, although the witness was detained in a Rwandan military camp, he had not been charged with any crime. The Trial Chamber further stated: “Moreover, no evidence has been adduced of criminal involvement on his part in the events giving rise to the charges faced by the Accused”. Thus, the Trial Chamber concluded, the witness was not an accomplice whose uncorroborated testimony was subject to special caution. On appeal, the Appeals Chamber endorsed the Trial Chamber’s conclusion. Reviewing the jurisprudence cited in the first section of this chapter, the Appeals Chamber finds that it exclusively relates to accomplices in the “ordinary meaning” of the term. In Čelebići, the witness whom the Trial Chamber considered an accomplice was employed in the same prison camp as the accused and participated in the offences against the detainees. In Kordić and Čerkez, the witness was convicted by the ICTY for his participation in one attack with which the accused was also charged.

234.    The Appeals Chamber recalls that the reason for applying “caution” to the testimony of accomplice evidence is that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal. Obviously, these motives or incentives are much stronger when the witness is charged with the same criminal acts as the accused. It may be necessary, depending on the circumstances of the case, also to employ a critical approach towards witnesses who are merely charged with crimes of a similar nature. But in most cases, they will not have the same tangible motives for giving false evidence like a witness who was allegedly involved in the same criminal acts as the accused. Therefore, as long as no special circumstances have been identified, it is reasonable not to employ the same cautious approach towards the testimony of witnesses charged with similar crimes as to the testimony of accomplices in the ordinary sense of the word.