30. Karadžić places significant emphasis on the Šešelj Decision’s instruction that the Trial Chamber provide Šešelj with a list from which he could select his standby counsel, rather than impose one directly, as the Trial Chamber had chosen to do. […]

31. The Appeals Chamber notes that the Šešelj Decision was rendered in a unique factual and procedural context very different from Karadžić’s. […]

Taking into account the context of the Šešelj trial, the Decision concluded that the provision of opportunities to participate in the selection of standby counsel beyond those required by the Rules or Article 21(4) of the Statute was necessary in order to ensure the [ešelj trial’s fair and expeditious conduct under Article 20(1) of the Statute.[2] The Appeals Chamber reiterates that a Chamber’s context-limited decision to provide for processes beyond those guaranteed by the Statute and the Rules does not create an automatic right to these processes.[3]

32. […] In the [Šešelj] case, the Appeals Chamber was acting to ensure an orderly and careful restart of trial proceedings, after having previously found that the Trial Chamber violated Šešelj’s right to self-representation guaranteed under Article 21(4)(d) of the Statute by failing to warn him that his behaviour might result in the curtailment of that right.[4] By contrast, Karadžić has been warned on numerous occasions that his behaviour obstructs the expeditious conduct of the proceedings and that, should it continue, he risks curtailment of his right to self-representation.[5] Given the flexibility exhibited by the Registrar in the provision of standby counsel to Karadžić, the Appeals Chamber sees no basis for requiring that he be provided with greater opportunities to select personally between individuals available to serve as standby counsel.

35. The Appeals Chamber underscores that limitations on the right to self-representation are a rare occurrence, and that their details are necessarily context-specific. More particularly, the appointment of standby counsel is not subject to more formalized procedures designed to regularize the assignment of counsel to indigent suspects and accused who do not choose to self-represent. In assigning standby counsel, the Registrar or a Chamber may, but are not required to, make reference to procedures used in the assignment of counsel in other contexts. This more fluid and individualized approach to the appointment of standby counsel in cases of self-representation is amply justified by the fact that the reasons for and specific parameters of each appointment will vary considerably.

28. The Appeals Chamber recalls that evidence is credible if it appears to be reasonably capable of belief or reliance.[1] […] As to the two remaining documents, 4DA2 and 4DA27, both bear sufficient indicia of credibility, such as stamps or signatures or both, and the Appeals Chamber finds them also to be prima facie credible in the sense of Rule 115(B) of the Rules.

13. The Appeals Chamber first notes that with respect to the standard for admission of evidence on appeal, Lazarević submits that two prerequisites must be met: (i) the material must have been unavailable at trial and (ii) its consideration by the Appeals Chamber must be in the interests of justice.[1] Had the material been available at trial, Lazarević argues that the Appeals Chamber retains the inherent power to consider it, if a failure to do so would result in a miscarriage of justice.[2] The Appeals Chamber finds that Lazarević misapprehends the standard for admission of additional evidence on appeal, as the “interests of justice” test reflects neither the current requirements of Rule 115(B) of the Rules nor the established jurisprudence of the Tribunal.[3] The Appeals Chamber will therefore examine Lazarević’s submissions in accordance with the correct standard articulated above.[4]

8. The Appeals Chamber notes that the Trial Chamber reasoned that Rule 15 of the Rules “applies expressly to [J]udges and does not contemplate the disqualification of [C]hamber’s legal officers or consultants”.[1] The Trial Chamber further considered that the disqualification of Chambers’ legal officers or consultants finds no support in the jurisprudence of the Tribunal.[2] In reaching this conclusion, the Trial Chamber also referred to a report from a Panel of the ICTY which had been appointed to provide an opinion on disqualification of Judges and legal staff in connection with a contempt case before the ICTY.[3] The Trial Chamber noted that in the Hartmann Report, the ICTY Panel stated that a plain reading of Rule 15 of the ICTY Rules of Procedure and Evidence, which is similar to Rule 15 of the Rules, shows that it applies solely to Judges and does not extend to Chambers’ staff, and that the conduct of legal officers is not relevant to determining a Judge’s impartiality.[4] The Trial Chamber concluded that it did “not consider that Rule 15 [of the Rules] may be extended to apply to Chambers legal officers or legal consultants”.[5] The Appeals Chamber considers that it was open to the Trial Chamber to rely on the ICTY Panel’s reasoning on this issue and, accordingly, finds no discernible error in the Trial Chamber’s reasoning in this respect.

9. The Appeals Chamber further notes that the submissions of Mr. Bicamumpaka and Mr. Mugiraneza are premised on the erroneous notion that legal officers or consultants play a central role in the Judges’ deliberations. Judicial decision-making is the sole purview of the Judges and legal officers and consultants play no role in it. Rather, they merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[6] Accordingly, there is no merit in Mr. Bicamumpaka’s and Mr. Mugiraneza’s assertions that legal officers and consultants must be subject to the same standards of impartiality as the Judges of the Tribunal.

10. The Appeals Chamber recalls that in the Furundžija case, the ICTY Appeals Chamber held that there is a “presumption of impartiality” which attaches to a Judge,[7] and that “… in the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal ’can disabuse their minds of any irrelevant personal beliefs or predispositions’”.[8] Thus, “[t]here is a high threshold to reach in order to rebut the presumption of impartiality”.[9] The Appeals Chamber considers that it follows from this presumption that mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves, to warrant disqualification of a legal officer or consultant.

11. The Appeals Chamber is not persuaded that the Trial Chamber committed a discernible error and thereby abused its discretion in finding that Rule 15(A) of the Rules does not apply to legal officers and consultants. […] In some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial. However, the present case falls far short of such a situation. […]

17. An alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime”[4] or, otherwise stated, present evidence “likely to raise a reasonable doubt in the Prosecution case.”[5] If the alibi is reasonably possibly true, it must be accepted.[6]

18. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[8] for example, by demonstrating that the alibi evidence is not credible.

19. The Appeals Chamber has considered on several occasions whether Trial Chambers have erroneously shifted the burden of proof to the accused with respect to their alibis. Appellants have frequently pointed to language in the assessment of alibi evidence intimating that they were required to disprove the Prosecution’s evidence through their alibis. The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must “negate” the Prosecution’s evidence,[9] “exonerate” himself,[10] or “refute the possibility” that he participated in a crime[11] indicates that the Trial Chamber misapplied the burden of proof. Indeed, as stated in the Musema Appeal Judgement, “[i]n considering the manner in which the Trial Chamber applied the burden and standard of proof, the Appeals Chamber must start off by assuming that the words used in the Trial Judgement accurately describe the approach adopted by the Trial Chamber.”[12]

20. In assessing whether a Trial Chamber, when using this type of language, has in fact shifted the burden of proof, the Appeals Chamber carries out an in-depth analysis of the specific findings related to a given incident.[13] The Appeals Chamber has generally found that such language, while inappropriate, is not fatal when viewed in the broader context of a Trial Chamber’s findings. This is especially the case where the Trial Chamber accurately refers elsewhere in the judgement to the appropriate burden of proof for the evaluation of alibi evidence, its overall approach evinces a careful assessment of the alibi evidence, and its conclusion that the alibi evidence is ultimately not credible is reasonable when weighed against the evidence of participation in a crime.[14]

38. The Appeals Chamber observes that the Trial Chamber correctly stated that the Prosecution bears the burden of establishing the accused’s guilt beyond reasonable doubt[15] and that it would consider each piece of evidence in light of the totality of the evidence admitted at trial.[16] […]

39. Nonetheless, the Appeals Chamber finds that the Trial Chamber’s assessment of Zigiranyirazo’s alibi involves three serious errors that, taken together, invalidate his convictions based on the events at Kesho Hill. Specifically, the Trial Chamber erred by misapprehending the burden of proof in the context of alibi, failing to consider or provide a reasoned opinion with respect to relevant circumstantial evidence, and misconstruing key evidence which, properly considered, bolstered Zigiranyirazo’s alibi.

42. The Appeals Chamber emphasizes that a successful alibi does not require conclusive proof of an accused’s whereabouts.[17] Indeed, there is no requirement that an alibi “exclude the possibility” that the accused committed a crime.[18] The alibi need only raise reasonable doubt that the accused was in a position to commit the crime.[19]

36. As a preliminary matter, the Appeals Chamber has previously stated that a detailed record of a Trial Chamber’s site visit should normally be maintained.[1] The Appeals Chamber observes, however, that Zigiranyirazo did not object at trial to the lack of record. In addition, there appears to be no dispute with respect to the itinerary and travel times taken by the Trial Chamber during its site visit. The absence of a record also did not prevent Zigiranyirazo from fully addressing issues arising from the site visit in his Defence Closing Brief. Consequently, the Appeals Chamber does not consider that the lack of a record of the site visit invalidated the verdict.

32. The Appeals Chamber recalls that when noting Article 49 (1) of Additional Protocol I, the Galić Appeals Chamber held that the crime of terror can comprise attacks or threats of attacks against the civilian population.[1] It did not limit the possible consequences of such attacks to death or serious injuries among the victims.[2] Rather, it concentrated on the assessment of whether the allegations before it would qualify for the crime of terror under international customary law.

33. The Appeals Chamber finds that the Trial Chamber misinterpreted the Galić jurisprudence by stating that “actual infliction of death or serious harm to body or health is a required element of the crime of terror”, and thus committed an error of law.Causing death or serious injury to body or health represents only one of the possible modes of commission of the crime of terror, and thus is not an element of the offence per se. What is required, however, in order for the offence to fall under the jurisdiction of this Tribunal, is that the victims suffered grave consequences resulting from the acts or threats of violence;[4] such grave consequences include, but are not limited to death or serious injury to body or health. Accordingly, because the Trial Chamber established in the present case that all the incidents imputed to the SRK constituted unlawful attacks against civilians, and thus caused death or serious injury to body or health of civilians,[5] the threshold of gravity required for the crime of terror based on those incidents has been met. Whereas the nature of the acts of violence or threats thereof constitutive of the crime of terror can vary,[6] the Appeals Chamber is satisfied that the actus reus of the crime of terror has been established in this case and does not find it necessary to explore the matter any further.

34. As for the Prosecution’s submission that the crime of terror has no result requirement provided that the underlying acts or threats of violence are “capable of spreading terror”,[7] the Appeals Chamber notes that the travaux préparatoires to Additional Protocol I show that there had been attempts among the delegations to introduce “acts capable of spreading terror” into the language of the prohibition enshrined under Article 51(2) thereof.[8] However, these proposals were not reflected in the final text of the provision.[9] In addition, the Appeals Chamber considers that the definition of the actus reus of the crime of terror suggested by the Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave consequences for the civilian population and thus does not per se render the violation of the said prohibition serious enough for it to become a war crime within the Tribunal’s jurisdiction.

35. The Appeals Chamber further recalls that the Galić Appeal Judgement clarifies that while “extensive trauma and psychological damage form part of the acts or threats of violence”, the “actual terrorisation of the civilian population is not an element of the crime”.[10] It should be noted, however, that evidence of actual terrorisation may contribute to establishing other elements of the crime of terror.[11] The Trial Chamber in the instant case established that the incidents had had a psychological impact on the population of Sarajevo.[12] In the circumstances of the case, such psychological impact also satisfies the required gravity threshold.[13]

39. […] [T]he Appeals Chamber recalls the two-pronged test articulated in the Čelebići Appeal Judgement[1] and emphasizes that the focus of the analysis is to be placed on the legal elements of each crime, rather than on the underlying conduct of the accused.[2] With respect to the offence of unlawful attacks against civilians, the Appeals Chamber recalls that it requires proof of death or serious injury to body or health, which, as explained in paragraph 33 above, is not per se an element of the crime of terror. Conversely, the offence of terror requires proof of an intent to spread terror among the civilian population which is not an element of the crime of unlawful attacks against civilians. Therefore, the Appeals Chamber finds that each offence has an element requiring proof of a fact not required by the other, thus allowing cumulative convictions. The Trial Chamber’s conclusion to the contrary was, accordingly, erroneous.

58. Concerning the status of victims of crimes under Article 5 of the Statute, the Appeals Chamber recalls that “there is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber, that requires that individual victims of crimes against humanity be civilians”.[1] Nonetheless, it notes that the civilian status of the victims remains relevant for the purpose of the chapeau requirement of Article 5 of the Statute as one of the factors to be assessed in determining whether the civilian population was the primary target of an attack.[2] Furthermore, “the fact that a population, under the chapeau of Article 5 of the Statute, must be 'civilian' does not imply that such population shall only be comprised of civilians.”[3] Accordingly, the civilian status of the victims and the proportion of civilians within a population are factors relevant to satisfy the chapeau requirement that an attack was directed against a “civilian population”, yet it is not an element of the crimes against humanity that individual victims of the underlying crimes be “civilians”.[4]

302. […] [T]he Appeals Chamber recalls that it is settled jurisprudence of this Tribunal that while a position of authority, even at a high level, does not automatically warrant a harsher sentence, the abuse of such may indeed constitute an aggravating factor.[1] The Appeals Chamber further reiterates, Judge Liu dissenting, that this holds true in the context of a conviction under Article 7(1) of the Statute, including the mode of responsibility for planning and ordering crimes.[2] Before arriving at its conclusion, the Trial Chamber in the instant case specifically took into account Milošević’s high rank within the VRS, the ensuing special responsibility to uphold the standards of international humanitarian law, and the fact that he was highly respected by the SRK staff.[3] In this regard, the Appeals Chamber recalls that whereas the mode of liability of ordering requires that the person giving the order has a position of authority, the abuse of such authority may still be considered an aggravating factor in sentencing.[4] The Trial Chamber was mindful of the fact that the superior position per se does not constitute an aggravating factor and did not consider Milošević’s authority to give orders to that effect.[5] Rather, it took into account the particularly high level of Milošević’s authority and the high esteem of his soldiers in assessing whether his conduct amounted to an abuse of his superior position. Milošević has failed to demonstrate any error in this regard.

303. […] In addition, the Appeals Chamber recalls that the superior’s abuse of his position of a high level of authority may also be taken into consideration for a conviction under Article 7(3) of the Statute.[6]