59. […] The ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of a superior-subordinate relationship for the purpose of superior responsibility, will almost invariably not be satisfied unless such a relationship of subordination exists.[1] The Appeals Chamber considers that a material ability to prevent and punish may also exist outside a superior-subordinate relationship relevant for Article 7(3) of the Statute. For example, a police officer may be able to “prevent and punish” crimes under his jurisdiction, but this would not as such make him a superior (in the sense of Article 7(3) of the Statute) vis-à-vis any perpetrator within that jurisdiction. […]

69. […] while being in “overall control of combat operations” is not an express requirement under Article 7(3) of the Statute, the Trial Chamber is expected to make a finding in this respect if such a fact is pleaded as underlying one of the requirements of superior responsibility. In the present case, although the Prosecution did not explicitly allege “control of combat operations”, it argued that Halilović had authority to “command combat activities”[2] and that he issued combat orders “consistent with those a commander of an operation would normally issue”,[3] as a way of showing that a superior-subordinate relationship existed. The Trial Chamber was therefore expected to rule on this allegation as part of its overall analysis regarding Halilović’s authority to issue orders which would, in turn, assist in assessing whether a superior-subordinate relationship existed.[4]

154. […] The Appeals Chamber considers that the qualification of a location as an IKM [Forward Command Post (Istureno Komandno Mesto)] bears significance as “IKMs were used by commanders in order to exercise command when they were in the field”[5] and their establishment could as such amount to one of the “indicators of effective control” as outlined by the Trial Chamber.[6] […]

207. […] the Appeals Chamber considers that proof that an accused is not only able to issue orders but that his orders are actually followed, provides another example of effective control.[7] […] The Appeals Chamber therefore finds that a reasonable trier of fact could have concluded that Halilović’s orders were not followed and could have taken into account this important consideration in the overall assessment of Halilović’s effective control over the perpetrators.

61. The Appeals Chamber will now consider the Prosecution’s submissions that the Trial Chamber erred in restating the law on the third element of superior responsibility.[1] According to the Prosecution, in paragraphs 81 to 90 of the Trial Judgement, the Trial Chamber created an unnecessary and unwarranted distinction between a general obligation and a specific obligation to prevent crimes.[2]

63. […] The Appeals Chamber stresses that “necessary” measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and “reasonable” measures are those reasonably falling within the material powers of the superior.[3] What constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[4]

64. The Appeals Chamber holds that the Trial Chamber erred when giving the impression that there is an additional requirement to the third element of superior responsibility and agrees with the Prosecution that the correct legal standard is solely whether the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.[5] Of course, this single standard will have to be applied differently in different circumstances; however, the artificial distinction between “general” and “specific” obligations creates a confusing and unhelpful dichotomy.

120. […] Where an error of law is found, it is open to the Appeals Chamber to review the relevant findings of the Trial Chamber according to the correct legal standard.[1] In cases like the instant one, however, where it is submitted that an error of law potentially impacts every single piece of evidence and, by implication, every finding made by the Trial Chamber, the appellate party is required to develop its arguments more precisely by referring to specific portions of the Trial Judgement, thus limiting the import of its allegations – lest the appeal procedure effectively becomes a trial de novo.[2] […]

11. Article 20(a)(d) of the Statute provides that an accused has a right “to be tried in his or her presence”. The Appeals Chamber has interpreted the scope of this right as meaning that an accused has a right to be physically present at his trial.[1]  […]

15. The Appeals Chamber agrees that the right to an expeditious trial as a right guaranteed to all accused by the Statute of the Tribunal was a relevant consideration for the Trial Chamber in balancing whether or not to proceed in the absence of the Appellant. However, in the circumstances of this complex and lengthy case, the Appeals Chamber is not satisfied that the three day delay to the trial was sufficient to outweigh the statutory right of the Appellant to be present at his own trial when the absence of the Appellant was due to no fault of his own. […]

7. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. The Impugned Decision, which ruled on the right of the accused to be present at trial, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] A Trial Chamber’s exercise of discretion will thus be reversed only if the Appellant demonstrates that the Trial Chamber made a discernible error in the Impugned Decision because it was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.

21. The Appeals Chamber is satisfied that the principle of in dubio pro reo, as a corollary to the presumption of innocence, and the burden of proof beyond a reasonable doubt,[1] applies to findings required for conviction, such as those which make up the elements of the crime charged. This approach is consistent with the case-law of the International Tribunal and is a logical approach, given that, in the context of issues of fact, the principle is essentially just one aspect of the requirement that guilt must be found beyond a reasonable doubt.[2] In Naletilić and Martinović, the Appeals Chamber recognized the applicability of this principle to the mens rea requirement of knowledge of the existence of an armed conflict.[3] Similarly, the Naletilić and Martinović Trial Chamber applied the principle in the context of the crime of torture: It held that the evidence did not allow the Trial Chamber to distinguish between beatings that were inflicted with a specific purpose – which is required to establish the crime of torture ‑ and beatings that may have been inflicted for reasons of pure cruelty, but not with a specific purpose. Consequently, the Trial Chamber found in dubio pro reo that the specific purpose necessary for torture had not been established beyond reasonable doubt.[4] Further, the principle of in dubio pro reo is not applied to individual pieces of evidence and findings of fact on which the judgement does not rely. For example, in Kvočka et al., the Appeals Chamber dismissed Prcać’s argument that the Trial Chamber failed to apply the principle when it found that Prcać was an administrative assistant at the Omarska camp.[5] The Appeals Chamber held that the finding that Prcać was an administrative assistant was not a fact aimed at conviction or an element of the crime charged, and thus the in dubio pro reo inquiry did not apply.

See Judge Shahabuddeen’s and Judge Schomburg’s declarations.

27. The Appeals Chamber agrees with both parties that no probative weight should be attached to in-court identifications.[1] As considered by the Kunarac Trial Chamber, in-court identifications are inherently unreliable “[b]ecause all of the circumstances of a trial necessarily lead such a witness to identify the person on trial”.[2] This has been affirmed in both the Kunarac and Kamuhanda Appeal Judgements.[3]

28. […] Accordingly, the Trial Chamber attached some weight to the in-court identifications and to the extent that it did, it was in error.[4] […]

30. In considering this allegation, the Appeals Chamber recalls its finding in Kupreškić et al. that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction. Domestic criminal law systems from around the world recognise the need to exercise extreme caution before proceeding to convict an accused person based upon the identification evidence of a witness made under difficult circumstances. The principles developed in these jurisdictions acknowledge the frailties of human perceptions and the very serious risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations.

After having examined a number of domestic criminal law systems in relation to the question of identification evidence, the Appeals Chamber stated in Kupreškić et al.:

Courts in domestic jurisdictions have identified the following factors as relevant to an appellate court’s determination of whether a fact finder’s decision to rely upon identification evidence was unreasonable or renders a conviction unsafe: identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.

In addition, the Appeals Chamber observes that identification evidence may be affected by the length of time between the crime and the confrontation.[7]

86. The Appeals Chamber recalls that a Trial Chamber need not refer to the testimony of every witness or every piece of evidence on the trial record, “as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.”[1] Such disregard is shown “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”[2]

88. […] In this context, the Appeals Chamber recalls that “it is settled jurisprudence of the International Tribunal that it is the trier of fact who is best placed to assess the evidence in its entirety as well as the demeanour of a witness.”[3] […]

153. […] Accordingly, the Trial Chamber correctly found that:

The ultimate weight to be attached to each relevant piece of evidence, including each visual identification where more than one witness has identified an Accused, is not to be determined in isolation. Even though each visual identification and each other relevant piece of evidence, viewed in isolation, may not be sufficient to satisfy the obligation of proof on the Prosecution, it is the cumulative effect on the evidence, i.e. the totality of the evidence bearing on the identification of an Accused, which must be weighed to determine whether the Prosecution has proved beyond reasonable doubt that each Accused is a perpetrator as alleged.[4]

At paras 63-64, the Appeals Chamber recalled the previous jurisprudence of the ICTR Appeals Chamber with respect to the consequences of a defence of alibi on the burden of proof of the accused’s guilt: raising a defence of alibi does not affect the onus incumbent on the Prosecution to establish beyond reasonable doubt, despite the alibi, the accused’s guilt. Consequently, the accused bears no onus to establish the alibi, but it is for the Prosecution to eliminate any reasonable possibility that the alibi is true. Moreover, the demonstration that an alibi is false is not sufficient to demonstrate the accused’s guilt:

63. The Appeals Chamber notes and agrees with the ICTR Appeals Chamber’s finding in Kamuhanda with respect to the burden of proof regarding alibi that:

[a]n alibi […] is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution.[1]

Similarly, the ICTR Appeals Chamber held in Kajelijeli that:

[t]he burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

This does not, however, require the Prosecution to specifically disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

64. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber correctly held that:

So long as there is a factual foundation in the evidence for that alibi, the Accused bears no onus to establish that alibi; it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true”. Further, as has been held by another Trial Chamber, a finding that an alibi is false does not in itself “establish the opposite to what it asserts”. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.[3] 

65. […] Thus, the Appeals Chamber finds that when the Trial Chamber held that the alibi evidence did not “negate the evidence” of the Prosecution, it was not stating a legal requirement. Indeed, it was rather explaining the reasons why it did not find that Haradin Bala’s alibi raised a reasonable doubt in the Prosecution’s case. […]