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. […]

99. As to the substantive elements for establishing joint criminal enterprise liability, the Trial Judgement’s section on the “Law on the forms of liability charged” correctly sets out the requirements for joint criminal enterprise liability as defined in the Tribunal’s jurisprudence.[1] When examining the participation of the three Accused in a joint criminal enterprise, the Trial Chamber held that

[i]n the absence of evidence demonstrating that a group of individuals, whose identities could be established at least by reference to their category as a group, in the sense identified in the jurisprudence, furthered a common plan, and, given the lack of evidence as to the scope of any such plan, the principal elements of joint criminal enterprise have not been established.[2]

A plain reading of this finding is that the Trial Chamber was not satisfied that the Prosecution had adduced sufficient evidence of the identity of the alleged participants in the joint criminal enterprise to establish a plurality of persons sharing a common plan existed. Thus, the Appeals Chamber is not satisfied that the Trial Chamber applied an erroneously narrow approach to the legal requirement of “identification” as argued by the Prosecution.

104. […] While the Appeals Chamber found that “[t]he principal perpetrators of the crimes constituting the common purpose […] should […] be identified as precisely as possible”,[3] it held that it was sufficient for such an identification to establish that the principal perpetrators were “civilian and military authorities and/or guards and soldiers present at KP Dom”.[4] Similarly, in Vasiljević, the Appeals Chamber accepted the finding of the Trial Chamber that a joint criminal enterprise to commit persecution existed, although two out of the three participants of the joint criminal enterprise were unidentified men.[5] In Krstić, the Appeals Chamber accepted the finding of the Trial Chamber that a joint criminal enterprise to commit genocide existed, although “the Trial Chamber did not identify individual members of the Main Staff of the VRS as the principal participants in the genocidal enterprise”.[6] By the same token, the Appeals Chamber held in Stakić that the participants in the joint criminal enterprise “included the leaders of political bodies, the army, and the police who held power in the Municipality of Prijedor”, without further identification.[7] In addition, in Brđanin, the Appeals Chamber found that while a Chamber must “identify the plurality of persons belonging to the JCE […] it is not necessary to identify by name each of the persons involved”.[8] In light of these findings, the Appeals Chamber is satisfied that no reasonable trier of fact could have found that it was impossible “to determine the identity of those involved in the operation of the prison camp, apart from the Accused Haradin Bala”.[9] […]

110. […] While motive is not an element of the mens rea of a joint criminal enterprise, the existence ‑ and scope ‑ of a common plan is part of its actus reus. Hence, the targeting of these specific groups was part of the actus reus of the joint criminal enterprise charged in the Indictment.[1] […]

109. The Appeals Chamber notes that motive is generally not an element of criminal liability. The Appeals Chamber has repeatedly confirmed the “‘inscrutability of motives in criminal law’ insofar as liability is concerned, where an intent […] is clear”.[1] […]

135. The Appeals Chamber recalls its findings in Dragan Nikolić on the question of guidance that may be provided by previous sentences rendered before the International Tribunal:

The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited” but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances, when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo, and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[1]

165. As to the possibility of unconscious transference, Professor Wagenaar’s expert report, which was admitted into evidence and relied upon by the Trial Chamber,[1] explained the rules for identification tests applicable to unfamiliar personsas follows:

Rule 1. […] [T]here should not be even a single occasion at which the witness might have seen the perpetrator before he encountered him at the scene of the crime.

Rule 2. […] [A]fter the crime the witness should not have seen any pictures of the suspect. […]. This phenomenon is called unconscious transference […]

166. In its challenged finding, the Trial Chamber reasonably considered Rule 2 on the possibility that unconscious transference will occur when the witness is exposed to an image of the perpetrator after the commission of the crime. […]

196. The Appeals Chamber is satisfied that the Trial Chamber was correct in finding that, after the events in the prison camp, all of these witnesses saw Fatmir Limaj in the media. Furthermore, none of the identification evidence of these witnesses was rejected on the basis of possible unconscious transference alone. Therefore, the Appeals Chamber is satisfied that the Trial Chamber reasonably took this possibility into account when refusing to accept the identification evidence of these witnesses.[5]

10. The Appeals Chamber can identify no error on the part of the Trial Chamber in finding that it lacked authority to award compensation to Mr. Rwamakuba for having been prosecuted and acquitted. As the Trial Chamber observed, the Statute and Rules of the Tribunal do not provide a basis for compensation in such circumstances.[1] Nor is any found in the jurisprudence of this Tribunal or of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). In the past, the Presidents of this Tribunal and the ICTY requested the Security Council to amend the Statutes of the two Tribunals to provide for such authority.[2] These efforts were unsuccessful and underscore the inability of the Tribunal to provide such a remedy in either its express or implied powers.[3] As the Trial Chamber observed, the practice of providing compensation for an acquittal varies at both national and international levels.[4] In this respect, the International Covenant on Civil and Political Rights (“ICCPR”) refers to a right of compensation only where an individual already convicted by a final decision has been exonerated by newly discovered facts.[5] A person in such circumstances who has been convicted and has suffered punishment as a result of the conviction may receive compensation.[6] Mr. Rwamakuba, however, was not convicted and punished; he was acquitted in the first instance.