318. Renzaho does not specify whether he contends that, by law, no conviction could be entered against him for ordering the killing of Tutsis unless based on direct evidence or whether he challenges the Trial Chamber’s findings themselves. To the extent that Renzaho challenges the Trial Chamber’s reliance on circumstantial evidence for a conviction, the Appeals Chamber recalls that ordering, as a mode of responsibility, can be inferred from circumstantial evidence, so long as it is the only reasonable inference.[1] The Trial Chamber was fully aware of this standard.[2]

319. The Appeals Chamber considers, however, that in finding that Renzaho gave a distinct order to kill Tutsis at roadblocks, the Trial Chamber failed to explain how this was the only reasonable inference that could be drawn from the evidence. The Trial Chamber enumerated the factors that it took into account: Renzaho’s “authority, his actions in support of roadblocks, their role in the ‘defence’ of the city, their widespread and continuous operation, as well as his order to distribute weapons”.[3] However, no explanation is provided to show how the combination of these factors necessarily leads to the conclusion that Renzaho ordered killings. Even if all of these factors consistently show that Renzaho’s actions were aimed at the killing of Tutsis at roadblocks or that he was aware of the risk that Tutsis would be killed at roadblocks, there is an insufficient basis to make the factual finding that Renzaho “ordered” such killings. Judge Güney and Judge Pocar dissent on this point.

99. The Trial Chamber found that there was no direct evidence of the circumstances in which Muharem Ramadani was killed.[1] Its conviction was based on circumstantial evidence. In light of the circumstances established on the evidence, the Trial Chamber found that the only reasonable conclusion was that the police, directed by Tarčulovski, killed Muharem Ramadani.[2] […]. Tarčulovski fails to demonstrate any error in the findings of the Trial Chamber.[3] […]

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] […]

At paras 304-306, the Appeals Chamber recalled the law applicable to circumstantial evidence, as enounced in the Čelebići Appeal Judgement and recently confirmed in Stakić:

304.    In the Čelebići Appeal Judgement, the ICTY Appeals Chamber set out the standard of proof applicable to circumstantial evidence as follows:

A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him – here that he participated in the second beating of Gotovac. Such a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

The same standard was applied in theVasiljević, Krstić and Kvočka et al. Appeal Judgements in relation to the establishment of the state of mind of the accused by inference and, more recently, in the Stakić Appeal Judgement.

305.    As the ICTY Appeals Chamber made clear in the Kordić and Čerkez Appeal Judgement, the Čelebići standard on circumstantial evidence has to be distinguished from the standard of appellate review. The Appeals Chamber notes that the Tribunal’s law on appellate proceedings, namely wheter “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, permits a conclusion to be upheld on appeal even where other inferences sustaining guilt could reasonably have been drawn at trial”.[5]

306.    It is settled jurisprudence that the conclusion of guilt can be inferred from circumstantial evidence only if it is the only reasonable conclusion available on the evidence. Whether a Trial Chamber infers the existence of a particular fact upon which the guilt of the accused depends from direct or circumstantial evidence, it must reach such a conclusion beyond reasonable doubt. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the non-existence of that fact, the conclusion of guilt beyond reasonable doubt cannot be drawn.

584. The Appeals Chamber recalls that the mens rea required for liability under the first category of joint criminal enterprise is that the accused shares the intent with the other participants to carry out the crimes forming part of the common purpose.[1] […]

585. […] [T]he Appeals Chamber recalls that, while it was necessary for the Trial Chamber to find that Karadžić shared the intent to forcibly displace the population, the Trial Chamber was not required to establish that he intended the specific acts of coercion causing the forcible removal of Bosnian Muslims.[2] […]

[…]

672. The Appeals Chamber recalls that, while an accused’s knowledge of particular crimes combined with continued participation in the execution of the common plan from which those crimes result may be a basis to infer that he or she shared the requisite intent for the crimes in question, this does not necessarily compel such a conclusion.[3] Whether intent can be inferred depends on all the circumstances of the case.[4] Further, where intent is inferred from circumstantial evidence, it must be the only reasonable inference available on the evidence.[5]

[…]

688. […] The Appeals Chamber […] recalls that, although knowledge of crimes in combination with failure to intervene to prevent them may be a basis for inferring intent, it does not compel such a conclusion.[6]

727. […] The Appeals Chamber recalls that the intent to destroy a group as such is circumscribed by the “area of the perpetrators’ activity and control” and the “extent of [the perpetrators’] reach”.[1] Absent direct evidence of genocidal intent, the “scale of the atrocities committed” is one of several factors relevant to determining genocidal intent[2] and the fact that more members of a targeted group could have been, for example, killed, but were not, may indicate a lack of the dolus specialis required to prove such intent.[3] 

728. […] The Trial Chamber recalled that conduct not constituting acts of genocide may be considered when assessing genocidal intent.[4] Furthermore, when assessing the mens rea for genocide, the Trial Chamber extensively detailed criminal conduct committed against Bosnian Muslims and Bosnian Croats that resulted in both immediate physical destruction as well as the remaining conduct which the Prosecution argues would have impacted the long-term survival of the targeted groups.[5] The Appeals Chamber finds that the Trial Chamber acted within the bounds of the law and its discretion when contrasting the number of Bosnian Muslims and Bosnian Croats displaced versus those who were victims of conduct falling within Article 4(2) of the ICTY Statute in assessing whether genocidal intent had been established.[6]

See also para. 729.

[…]

745. […] Evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent.[7] Utterances that fall short of expressly calling for a group’s physical destruction might constitute evidence of genocidal intent but a perpetrator’s statements must be understood and assessed in their proper context.[8] […]