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]

303. At the outset, the Appeals Chamber recalls that hearsay evidence is in principle admissible,[1] although in assessing its probative value, the surrounding circumstances must be considered.[2] […]

387. […] The Appeals Chamber recalls that where the source of identification evidence is hearsay, a trial chamber must duly consider the relevant criteria in assessing the weight or the probative value to be accorded to this evidence.[3] The Trial Chamber erred in failing to do so.

577. […] The Appeals Chamber recalls that a Trial Chamber has “wide discretion as to the assessment of the weight and probative value of the hearsay evidence alongside with other factors relevant to the evaluation of the totality of the evidence.”[4] However, caution is warranted in the consideration of hearsay evidence, particularly where such evidence constitutes the primary basis for the identification of an accused. Relevant criteria in assessing the weight or the probative value to be accorded to hearsay evidence are the source of the information,[5] the precise character of the information,[6] and corroborative evidence.[7]

260. The Appeals Chamber recalls that decisions of trial chambers have no binding force on each other.[1] Rather, a trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Following an analysis of the documentary and witness evidence before it,[3] the Trial Chamber was entitled to reach a conclusion as to Vasiljević’s presence that differed from that of the Vasiljević trial chamber. The Appellants have not shown that the Trial Chamber erred in its application of this principle. The argument that the Trial Chamber committed an error of law in so doing is therefore dismissed.

424. The Appeals Chamber has previously considered within the discussion of the actus reus of aiding and abetting the finding that an act or omission of an aider or abettor be “specifically directed” toward the furtherance of the crimes of the principal perpetrators.[1] The Appeals Chamber recalls, however, that “specific direction has not always been included as an element of the actus reus of aiding and abetting.”[2] It further recalls its conclusion that such a finding of specific direction “will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime”.[3] In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”[4] and finds that there is no “cogent reason”[5] to depart from this jurisprudence.

437. The Trial Chamber found that Sredoje Lukić, through his armed presence at and/or around the Memić House, provided practical assistance to the commission of the crimes committed at the Memić House and therefore found him guilty of aiding and abetting the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[1] The Trial Chamber correctly observed that the practical assistance of an aider and abetter must have a “substantial effect” upon the commission of the crimes in order for the actus reus to be established.[2] However, in finding that the actus reus of aiding and abetting was established, the Trial Chamber did not explicitly find that Sredoje Lukić’s practical assistance had a “substantial effect” on the commission of the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[3] The Appeals Chamber considers that an explicit finding of “substantial effect” should have been made and that the Trial Chamber’s failure to do so constitutes an error. Nonetheless, the Appeals Chamber is not convinced that this error invalidates the Trial Judgement.

438. […] the Appeals Chamber recalls that the question whether an act has a substantial effect on the commission of a crime necessitates a fact-based inquiry.[4] […]

157. In convicting Milan Lukić of committing murder, the Trial Chamber relied on the proposition contained in the Seromba and Gacumbitsi Appeal Judgements[1] that: “a person who did not personally physically commit a crime – in the present case, personally shooting each victim – can nonetheless be liable for committing the crime of murder if there is evidence that the perpetrator’s acts were as much an integral part of the murder as the killings which the crime enabled.”[2] The Trial Chamber acknowledged that the crime charged in the present case was murder, and not genocide or extermination, which were the crimes under consideration in Seromba and Gacumbitsi.[3] However, in its view, the reasoning was also applicable to the crime of murder.[4]

162. The Appeals Chamber does not find it necessary to consider whether the Seromba/Gacumbitsi line of reasoning should be followed with regard to the crime of murder. Contrary to Milan Lukić’s assertion, the Appeals Chamber is of the view that the Limaj et al. Appeal Judgement is relevant to the issue at hand. In that case, the Appeals Chamber upheld Haradin Bala’s conviction as a direct perpetrator, in the absence of a JCE, for committing murder by executing nine prisoners, on the basis that he “participated physically in the material elements of the crime of murder, jointly with Murrizi, and perhaps with a third KLA soldier” and without a need to show whose bullet killed each victim.[5] Similarly, the Appeals Chamber is satisfied that the Trial Chamber did not err when finding that Milan Lukić, jointly with others, participated in the material elements of the crime of murder, and is therefore responsible for the death of all five victims, regardless of whether or not he personally fired the fatal bullet in each case. Milan Lukić’s arguments to the contrary are dismissed, and his sub-ground 1(B) is thus rejected.

536. The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] This element of “massiveness” is what distinguishes the crime of extermination from the crime of murder.[2] The mens rea of extermination requires the intention of the perpetrator “to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths.”[3]

537. The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims.[4] While extermination as a crime against humanity has been found in relation to the killing of thousands,[5] it has also been found in relation to fewer killings. The Appeals Chamber recalls that in Brđanin, the killing of between 68 to 300 individuals “in light of the circumstances in which they occurred, [met] the required threshold of massiveness for the purposes of extermination.”[6] In Stakić, the trial chamber found that the killing of less than 80 individuals “independently would reach the requisite level of massiveness for the purposes of an evaluation under Article 5(b) of the Statute”.[7] In Krajišnik, while the conviction for extermination as a crime against humanity was based on the killing of at least 1,916 individuals, the trial chamber found that the killing of approximately 66 individuals during the Pionirska Street Incident satisfied the element of massiveness.[8] The ICTR and the Special Court for Sierra Leone (“SCSL”) have also found the killing of about 60 individuals and less to be sufficiently large-scale to amount to extermination.[9]

538. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[10] Relevant factors include, inter alia: the time and place of the killings;[11] the selection of the victims and the manner in which they were targeted;[12] and whether the killings were aimed at the collective group rather than victims in their individual capacity.[13] In Krstić, the trial chamber qualified the victimised population and held that:

“extermination” could also, theoretically, be applied to the commission of a crime which is not “widespread” but nonetheless consists in eradicating an entire population […] made up of only a relatively small number of people. In other words, while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.[14] […] [T]here must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.[15]

The Krstić trial chamber also stated that the preparation and organisation of the crime could be considered when determining the actus reus of extermination as a crime against humanity.[16] The International Law Commission articulated that “[e]xtermination is a crime which by its very nature is directed against a group of individuals” and qualified that the individuals do not have to share any common characteristics.[17]

542. The Trial Chamber thus considered the number of victims when assessing whether the element of massiveness was met. It also took into consideration the specific circumstances of the case, such as the type of victims and, with regard to the Pionirska Street Incident, the area of origin of the victims.[18] While these factors may be taken into consideration in the assessment of whether the element of massiveness for extermination is fulfilled, they do not constitute elements of the crime of extermination as a crime against humanity.[19] Therefore, a trial chamber need not address these factors in its assessment. Milan Lukić’s arguments that the Trial Chamber inconsistently considered population density in relation to the Pionirska Street and the Bikavac Incidents therefore fail. Furthermore, as these factors do not constitute elements of the crime of extermination, there is no mens rea requirement in relation to them as suggested by Milan Lukić.

543. When referring to population density regarding the Pionirska Street Incident, the Trial Chamber essentially considered the number of individuals killed in a specific area in relation to the overall population of that area.[20] The Appeals Chamber notes that almost the entire Muslim population of Koritnik perished in the Pionirska Street Incident.[21] In these circumstances, the Trial Chamber reasonably found that the killing of 59 persons amounted to extermination as a crime against humanity. The limited reduction of the number of victims by the Appeals Chamber does not affect this conclusion.[22] Furthermore, the Appeals Chamber finds that using a single village as the reference area was not artificially narrow since Milan Lukić’s conviction rests on one incident which involved victims who were predominately from the same village.[23]

544. The Appeals Chamber further finds that the Trial Chamber did not err in finding that extermination was established in relation to the Bikavac Incident. The Trial Chamber reasonably found that the killing of at least 60 persons was sufficiently large–scale.

545. Moreover, Milan Lukić’s argument that the Tribunal and the ICTR have ensured that the element of massiveness is maintained at a high level[24] is not supported by either the jurisprudence of the Tribunal or that of the ICTR. This argument is therefore dismissed.