6. Neither the Rules of Procedure and Evidence of the Tribunal […]] nor the Statute specify the standard by which the Appeals Chamber is to review the denial of a motion for acquittal under Rule 98 bis of the Rules. However, in previous rulings on interlocutory appeals from decisions on Rule 98 bis motions, the Appeals Chamber has reviewed trial chambers’ legal conclusions to determine whether the trial chamber committed errors of law.[1] Accordingly, the Appeals Chamber will review, as relevant, the Impugned Decision to determine whether the Trial Chamber committed an “error on a question of law invalidating [its] decision”.[2]

17. Karadžić suggests that the pre-announced intention to take enemy combatants hostage if certain conditions are not met allows a military force to assume control over these individuals in a way that completes the crime of hostage-taking without triggering the protections of Common Article 3.[1] However, Karadžić does not identify any aspect of the text or history of Common Article 3 or any jurisprudence supporting his contention that in particular circumstances, detention of combatants falls outside the scope of Common Article 3 protections. Karadžić cites the Sesay Judgement, rendered by the Appeals Chamber of the Special Court for Sierra Leone,[2] which does not contradict the Appeals Chamber’s analysis here, because, even if the act of hostage-taking was completed upon the detention of the UN Personnel, as Karadžić asserts,[3] their detention by Bosnian Serb forces still triggered the protections of Common Article 3. 

18. Insofar as Karadžić asserts that the prohibition on hostage-taking is less broad than other prohibitions in Common Article 3, that contention contravenes the Appeals Chamber’s holding that “[t]]he prohibition of hostage-taking shares the very same scope of application with the remaining rules enshrined in [C]]ommon Article 3.”[4] Furthermore, Karadžić’s interpretation of Common Article 3 would allow for situations where detainees could not be assured of basic protections. This risks undermining a fundamental purpose of Common Article 3: providing minimum and absolute protections to detained individuals, whether combatants or not.[5]

19. Karadžić is unconvincing in suggesting that the Impugned Decision is erroneous because it renders the Chapeau Requirement of Common Article 3 superfluous.[6] The Appeals Chamber recalls that the Impugned Decision addresses only one aspect of Common Article 3’s protections: the taking of hostages.[7] However, Common Article 3’s protections extend beyond hostage-taking and are also triggered in circumstances other than when an individual is detained and thus placed hors de combat. The Chapeau Requirement is indisputably meaningful and relevant to the other crimes prohibited under Common Article 3. For example, a sick soldier who has laid down his arms or is unable to fight because of sickness is a “[p]erson[] taking no active part in the hostilities” under Common Article 3 and may not be murdered or subjected to humiliating treatment; the Impugned Decision does not purport to apply to, nor does it affect, such situations.

20. Karadžić also fails to explain his assertion that considering all detained combatants to be hors de combat would render all detentions of combatants unlawful.[8] The fact that detainees are considered hors de combat does not render their detention unlawful in itself. Rather, their hors de combat status triggers Common Article 3’s protections, including the prohibition on their use as hostages. Likewise unconvincing is Karadžić’s argument that the similarity of his actions to those allegedly taken by UN troops at the same time as Bosnian Serb forces detained the UN Personnel somehow proves the lawfulness of Karadžić’s actions.[9] Karadžić’s speculative allegations on actions supposedly taken by UN troops are not relevant to Karadžić’s individual criminal responsibility, nor do they demonstrate any error in the Trial Chamber’s analysis about the UN Personnel’s hors de combat status after their detention.

21. Accordingly, the Appeals Chamber holds that Common Article 3’s prohibition on hostage‑taking applies to all detained individuals, irrespective of whether their detention is explicitly sought in order to use them as hostages and irrespective of their prior status as combatants. Karadžić has not demonstrated that the Trial Chamber erred in finding that “even if the UN [P]]ersonnel were combatants immediately before their detention, they were rendered ‘hors de combat’ by virtue of their detention and thus were entitled to the minimum protections guaranteed by Common Article 3.”[10]

118. The Trial Chamber noted that there was a difference between “identification” witnesses, to whom the accused was “previously unknown by sight” and “recognition” witnesses who had prior knowledge of the accused enabling them to recognise the accused at the time of the alleged crime.[1] A witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence. The Appeals Chamber considers that, as part of its reasoned opinion, a trial chamber should articulate the basis on which it was satisfied that the witness had prior knowledge of an accused and was therefore able to recognise that individual at the crime scene.[2]

119. The Appeals Chamber finds no error in the Trial Chamber having distinguished between “identification” and “recognition” witnesses. The Appeals Chamber further considers that the Trial Chamber rightly pointed out that a witness who has “acquired sufficient knowledge” of an accused, for example when a crime is committed over a long period of time, may be considered a “recognition” witness.[3] The Appeals Chamber finds that Milan Lukić and Sredoje Lukić have not shown that the Trial Chamber erred in law by distinguishing between “identification” and “recognition” witnesses.

614. […] The Appeals Chamber, Judge Pocar and Judge Liu dissenting, considers that in-court viva voce evidence is generally more reliable than prior statements.[1] This is based on the indicia of reliability provided by cross-examination of in-court evidence. A trial chamber preferring a witness’s prior statement to his or her viva voce evidence should provide reasons for doing so. […]

70. With respect to MLD1, the Trial Chamber held that “[t]]here are a number of aspects of MLD1’s account that are difficult to believe”.[1] It further found that Vilić’s testimony “raise[s] serious questions as to the credibility of MLD10 in general and in respect of her alibi evidence regarding the Drina river and Varda factory incidents”.[2] The Trial Chamber also found MLD15’s evidence “somewhat strange and artificial”.[3] The Appeals Chamber considers that in making these findings, the Trial Chamber explained its reasons for concluding that the witnesses lacked credibility. Such language does not indicate a reversal of the burden of proof. On the contrary, it shows that the Trial Chamber carefully considered the evidence of these alibi witnesses.

71. The Trial Chamber considered that inconsistencies in witness testimonies “call into question the alibi as a whole, as [they cast] reasonable doubt on the alibi evidence” of MLD1, MLD10, and Marković.[4] It also found that an “inconsistency resulting from MLD24’s evidence casts further doubt upon the veracity of the alibi presented as a whole.”[5] The use of these phrases is unfortunate since, taken in isolation, they could be interpreted as requiring Milan Lukić to prove beyond reasonable doubt that he was in Belgrade at the time of the alleged crimes. However, the Appeals Chamber observes that such language must be viewed in the broader context of the Trial Chamber’s findings.[6] The fact that the Trial Chamber in some instances used language which may be misunderstood does not necessarily mean that the Trial Chamber fundamentally misplaced the burden of proof.[7]

72. The Trial Chamber articulated the correct legal standard applicable to the examination of alibi evidence. […] Thus, the Appeals Chamber considers that, when using this language, the Trial Chamber was explaining why it did not find that the proffered alibi raised a reasonable doubt in the Prosecution’s case. The Trial Chamber rejected Milan Lukić’s alibi after having considered the evidence as a whole.[8] In these circumstances, the Appeals Chamber finds that Milan Lukić has failed to show that the Trial Chamber erred in law in assessing his alibi for the DrinaRiver and Varda Factory Incidents.

361. The Appeals Chamber finds that the Trial Chamber correctly articulated the burden of proof applicable to alibi evidence. It stated that “in putting forward an alibi, an accused need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case” and that “it remains incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.”[9]

362. The Appeals Chamber further finds that the Trial Chamber properly applied this burden of proof. Sredoje Lukić refers to the Trial Chamber’s finding that “certain aspects of the alibi evidence [were] difficult to believe”,[10] as well as the finding that witness accounts were “implausible”.[11] The Appeals Chamber is of the view that these considerations do not indicate a reversal of the burden of proof.

58. Further, the Appeals Chamber notes that, on 9 December 2008, the Prosecution submitted that three potential female witnesses were unwilling to speak to the Defence Team.[1] However, once Milan Lukić had received their identifying information, he was obliged to make use of all mechanisms of compulsion available under the Statute and the Rules had he wanted to contact them.[2]

135. The Appeals Chamber recalls that minor inconsistencies commonly occur in witness testimony without rendering it unreliable.[1] It is within the discretion of a trial chamber to evaluate discrepancies and to consider the credibility of the evidence as a whole, without explaining every detail of its decision.[2] The Appeals Chamber recalls that a trial chamber is required to “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”.[3] A trial chamber should consider whether there is inconsistent or inaccurate testimony concerning an accused’s physical characteristics,[4] or any other evidence regarding an accused’s identity which may be decisive in a trial chamber’s decision to rely on the identification evidence.[5]

261. Further, the Appeals Chamber recalls that adjudicated facts of which a trial chamber takes judicial notice pursuant to Rule 94(B) of the Rules “are merely presumptions that may be rebutted […] with evidence at trial”.[1] In this context, the Appeals Chamber emphasises that the final assessment of a piece of evidence is based on the totality of the evidence in a given case, as the same piece of evidence can be assessed differently in different cases because of other evidence on the record.[2] The mechanism of Rule 94(B) of the Rules does not allow a trial chamber to defer to the assessment of the evidence by another trial chamber on the ground that it was fashioned to favour consistency and uniformity in the Tribunal’s case-law.[3] The Trial Chamber therefore had the obligation to assess the evidence and reach its own conclusion.[4] The Appeals Chamber therefore finds that the Trial Chamber did not err in law in finding that the adjudicated fact in question, namely the accuracy of the Užice Hospital Records, was rebutted by the evidence presented at trial.

375.[…].The Appeals Chamber recalls that a trial chamber has a broad discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness,[1] and is at liberty to rely on the uncorroborated evidence of a single witness when making its findings, even if it is related to a material fact.[2] […]

565. Rule 92 quater of the Rules allows for the admission of written evidence when the person giving the statement is objectively unable to attend a court hearing ‑ either because the person is deceased or because of a physical or mental impairment ‑ even if the evidence goes directly to the accused’s acts and conduct.[1] However, Rule 92 quater(B) of the Rules counsels cautious scrutiny on the part of the trial chamber with respect to evidence that goes to the acts and conduct of the accused as charged in the indictment, as this may be a factor against the admission of such evidence, or of part of it.[2]

565. Rule 92 quater(A)(ii) of the Rules further requires a trial chamber to be satisfied that there are sufficient indicia of reliability to justify the admission of the written evidence.[3] Moreover, the general requirements for admissibility of evidence as set out in Rule 89 of the Rules must be fulfilled, namely that the proffered evidence must be relevant and have probative value as provided in Rule 89(C) of the Rules. Finally, the probative value of the evidence must not be substantially outweighed by the need to ensure a fair trial under Rule 89(D) of the Rules and the evidence must therefore not be unduly prejudicial.[4]

570. The Appeals Chamber recalls that in order for evidence admitted pursuant to Rule 92 quater of the Rules to support a conviction, it must be corroborated.[5] […]