18. The Appeals Chamber first turns to Karadžić’s contentions regarding the Adjudicated Facts. Contrary to Karadžić’s suggestion, the Judicial Notice Decisions did not suggest that he would be allocated additional time to rebut the Adjudicated Facts.[1] In addition, the Appeals Chamber, Judge Robinson dissenting, considers Karadžić is unconvincing in asserting that the Impugned Decision did not sufficiently assess the time he would need to rebut the Adjudicated Facts.[2] The Appeals Chamber notes that the Trial Chamber explicitly considered the “high number of adjudicated facts”[3] as one element underlying its decision granting Karadžić the same courtroom time as the Prosecution. The Trial Chamber also explicitly assessed the potential impact of the Adjudicated Facts on Karadžić’s case, concluding that not every Adjudicated Fact would need to be rebutted during Karadžić’s defence, as Karadžić had an opportunity to cross‑examine and elicit relevant evidence from Prosecution witnesses during the presentation of the Prosecution case.[4] While this analysis did not specify the amount of time being granted to rebut the Adjudicated Facts, the Appeals Chamber recalls that a trial chamber is “not obligated to justify its decision [on the allocation of time] with reference to each piece of evidence proposed”.[5] Accordingly, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated that the Impugned Decision’s analysis of the Adjudicated Facts was deficient.

19. The Appeals Chamber notes that Karadžić challenges the Impugned Decision by discussing the Trial Chamber’s analyses of certain Adjudicated Facts which he contends are demonstrative of the Trial Chamber’s general failure to consider the full import of the Adjudicated Facts.[6] However, the Appeals Chamber observes that the Trial Chamber was intimately aware of the scope of the Adjudicated Facts, as demonstrated by its multiple detailed decisions considering adjudicated facts proposed by the Prosecution.[7] In addition, the Appeals Chamber notes that the Impugned Decision explicitly considered that Karadžić had the opportunity to cross-examine Prosecution witnesses on many of the topics covered by the Adjudicated Facts, further demonstrating the Trial Chamber’s familiarity with this evidence.[8] In these circumstances, recalling that trial chambers enjoy broad discretion in evaluating evidence,[9] the Appeals Chamber, Judge Robinson dissenting, finds that Karadžić has not demonstrated that the Trial Chamber erred in its assessment of the import or scope of the Adjudicated Facts in its consideration of the time allocated for the defence case.

21. The Appeals Chamber has held that an appellant’s ability to participate in the appellate proceedings is contingent upon whether he possesses the mental capacity to understand their essentials, and the mental and/or physical capacity to communicate, and thus consult, with his counsel.[1] It has further clarified that the following standard of fitness (“Standard of Fitness”) applicable to trial proceedings also applies mutatis mutandis with regard to an appellant's fitness to exercise his right to consult with counsel concerning the preparation of his appellate submissions:

[…] meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings. [… A]n accused’s fitness to stand trial should turn on whether his capacities, “viewed overall and in a reasonable and commonsense manner, [are] at such a level that it is possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.[2]

[…]

22. […] [T]he Standard of Fitness focuses on an appellant’s ability to understand the essentials of the appellate proceedings. Processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients. Indeed, the Standard of Fitness indicates that a defendant may sometimes require assistance to participate in the proceedings.[3]

16. As a preliminary matter, the Appeals Chamber recalls that under Common Article 3, detention of a combatant during an armed conflict automatically renders him or her hors de combat, and that taking any individual hostage is among the acts which “are and shall remain prohibited at any time and in any place whatsoever”.[1] The plain text of Common Article 3 thus indicates that the prohibition on hostage-taking is both absolute and without exception. The Appeals Chamber further recalls that “any conduct of hostage-taking involving [Prisoners of War]] could not but be in violation of the Third Geneva Convention” and that “[t]]he main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of [C]]ommon Article 3, which expresses the shared principles which govern the Conventions”.[2]

22. Finally, turning to Karadžić’s contentions with respect to mens rea,[1] the Appeals Chamber recalls that “the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.”[2] Insofar as Karadžić contends that the Impugned Decision should be reversed because it did not respect this principle, the Appeals Chamber is not persuaded by his contentions. Even if Karadžić had believed that the UN Personnel were taking active part in the hostilities prior to their detention and thus were not entitled to protection under Common Article 3, his erroneous belief about the legal significance of the UN Personnel’s status would not shield him from criminal liability for using them as hostages after their detention. As explained above, Common Article 3 would apply to the detained UN Personnel irrespective of their status prior to detention,[3] and any misunderstanding by Karadžić with respect to this issue is not a valid defence.[4]

262. Milan Lukić submitted the Logbook Entry to the Trial Chamber without a translation into one of the working languages of the Tribunal.[1] The Logbook Entry, which related to 14 June 1992, was also admitted without a translation as part of Prosecution Exhibit P68, which comprised the whole logbook.[2] The Appeals Chamber emphasises that it is incumbent on the party seeking to admit an exhibit to provide a translation where necessary.[3] Milan Lukić failed to provide such a translation. However, the Appeals Chamber notes that the Trial Chamber admitted the Logbook Entry into evidence, as Exhibit 1D39, without noting or commenting on the lack of translation.[4] From this point, the document was part of the trial record, and was therefore before the Trial Chamber. Moreover, the Trial Chamber had the duty to consider all the evidence before it.[5]

263. In the Trial Judgement, the Trial Chamber stated that it had admitted the Logbook Entry “inadvertently” and was unable to attach any weight to it without a translation into one of the working languages of the Tribunal.[6] However, in its summary of the evidence in the Trial Judgement, the Trial Chamber demonstrated that, even without a translation, it was aware that the Logbook Entry showed that Vasiljević was registered at the Višegrad Health Centre on 14 June 1992.[7] Moreover, the Trial Chamber found that it was able to attach probative weight to Prosecution Exhibit P68, which had also been admitted into evidence without an official translation, but the substance of which had been commented on by a Prosecution witness.[8]

264. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to consider the substance of the Logbook Entry. However, the Appeals Chamber finds that this error has no impact.

466. Article 23(2) of the Statute and Rule 98 ter(C) of the Rules provide that a judgement shall be rendered by a “majority of the judges”. Rule 87(A) of the Rules specifies that a majority of judges must be satisfied that guilt has been proved beyond reasonable doubt. In the present case, there was no such majority as only Judge David was satisfied that Sredoje Lukić fulfilled the actus reus and mens rea of aiding and abetting extermination in the Pionirska Street Incident.[1] As set out above, for different reasons neither Judge Van den Wyngaert nor Judge Robinson was satisfied that Sredoje Lukić should be convicted of this offence. Thus, to conclude that the Trial Chamber’s majority findings on Sredoje Lukić’s participation in the murders and on their characterisation as extermination support a finding of guilt would lead to Sredoje Lukić’s conviction, despite the fact that only one Judge was satisfied that all the necessary elements were fulfilled. Such a conclusion is incompatible with the principle that a finding of guilt may be reached only when a majority of the trial chamber is satisfied that guilt has been proved beyond reasonable doubt, as enshrined in Rule 87(A) of the Rules. Thus, the Prosecution has not shown that the Trial Chamber erred in failing to convict Sredoje Lukić for aiding and abetting extermination as a crime against humanity on Pionirska Street. The Prosecution’s first ground of appeal is therefore dismissed.

112. The Appeals Chamber recalls that a trial chamber has a broad discretion to consider all relevant factors in determining the weight to attach to the evidence of any given witness.[1] It is within the discretion of a trial chamber to evaluate the evidence as a whole, without explaining its decision in detail.[2] Merely stating that two witnesses, who testified about two separate events, were accorded different weight by the Trial Chamber does not meet the standard of appeal.

128. The Appeals Chamber recalls that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2] This does not mean that corroboration is required.[3] However, a trial chamber must explain the reasons for accepting the evidence of an accomplice.[4]

149. The Appeals Chamber recalls that there is no requirement that the body of a victim be recovered in order to prove death beyond a reasonable doubt, and that a victim’s death can be inferred circumstantially from all the evidence presented to the Trial Chamber.[1] Consequently, the evidence of an eye-witness can be the sole basis for a finding that a person is dead. The Appeals Chamber also recalls that, in order to successfully challenge the trial chamber’s assessment of circumstantial evidence on appeal, an appellant must show that no reasonable trier of fact could have found that the conclusion reached by the trial chamber was the only reasonable inference.[2].

208. At the outset, the Appeals Chamber recalls that proof beyond reasonable doubt that a person was killed does not necessarily require proof that the dead body of that person has been recovered. Rather, a victim’s death may be inferred circumstantially from all the evidence presented to the Trial Chamber.[3] […]

316. As the Appeals Chamber noted above, proof beyond a reasonable doubt that a person is dead does not necessarily require that the body of that person was recovered.[4] A victim’s death can be inferred circumstantially from all of the evidence presented to a trial chamber.[5] […]

120. The Appeals Chamber recalls that in-court identification is generally permissible.[1] Contrary to the Appellants’ contention,[2] the fact that a witness fails to identify the accused during a pre-trial identification exercise does not bar a trial chamber from allowing in-court identification.[3] However, in-court identification should be given “‘little or no credence’ given the signals that can identify an accused aside from prior acquaintance”.[4] A trial chamber must therefore exercise caution in assessing such evidence.[5] The Appeals Chamber considers that, while little or no weight should be given to a witness’s in-court identification evidence,[6] a witness’s failure to identify an accused in court can be a reason for declining to rely on the identification evidence of that witness.[7] The distinction between an “identification” or “recognition” witness is thus irrelevant in the context of in-court identification. In the present case, the Trial Chamber allowed in-court identifications by several witnesses. The Appeals Chamber considers that, as a matter of law, Milan Lukić and Sredoje Lukić have not shown that the Trial Chamber erred by allowing in-court identification per se. The Appeals Chamber will evaluate the Appellants’ claims regarding each witness in the appropriate section.

136. The Appeals Chamber further recalls that “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’”.[8] In these instances, the Trial Chamber must “carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence”.[9]

137. Factors relevant to the Appeals Chamber’s determination of whether a trial chamber’s decision to rely upon identification evidence was unreasonable or rendered the conviction unsafe, include:

[I]dentifications 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.[10]

138. Furthermore, the Appeals Chamber considers that this list is not intended to be exhaustive.[11] A trial chamber is not bound to consider all of these factors, but only those appropriate in the circumstances of the case.[12]