At paras 219-220 of the Judgement, the Appeals Chamber recalled that when reviewing a Trial Chamber’s finding of fact based on inference, the standard is the same at that applied for direct evidence: the question before the Appeals Chamber is whether no reasonable trier of fact could have excluded or ignored other inferences that lead to the conclusion that an element of the crime was not proven.[1]

219. A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.[2] This standard applies whether the evidence evaluated is direct or circumstantial.[3] Where the challenge on appeal is to an inference drawn to establish a fact on which the conviction relies, the standard is only satisfied if the inference drawn was the only reasonable one that could be drawn from the evidence presented.[4] In such instances, the question for the Appeals Chamber is whether it was reasonable for the Trial Chamber to exclude or ignore other inferences that lead to the conclusion that an element of the crime was not proven.[5] If no reasonable Trial Chamber could have ignored an inference which favours the accused, the Appeals Chamber will vacate the Trial Chamber’s factual inference and reverse any conviction that is dependent on it.[6]

See also Ntagerura Appeal Judgement, paras 304-306.

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.

The Appeals Chamber affirmed that the Prosecution has to prove each element essential for a conviction. It is not sufficient to apply the standard of proof only at the very last stage of the decision-making process, when considering the “ultimate issue of guilt or innocence” (paras 169-175):

169.    As to the first argument, the Prosecution relies on a decision of the Supreme Court of Canada, R. v. Morin, to support its position that the standard of proof has to be applied at the verdict stage only, but not to the individual facts of the case. However, this decision does not support the contention that the individual facts of the case do not have to be proven beyond a reasonable doubt:

During the process of deliberation, the jury must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt.

In fact, Judge Sopinka, speaking for the majority, endorsed the conclusion in another case of the Supreme Court of Canada, Nadeau v. The Queen:

The jurors cannot accept his [a ‘Crown witness’] version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation.

In addition, the Appeals Chamber notes that some of the language used in R. v. Morin, which could be construed to support the Prosecution’s position at first view, is due to the fact that the issue in R. v. Morin was the instruction given to the jury by the trial judge. When considering this case in the context of the Tribunal, it has to be borne in mind that here the trier of fact is not a jury, but a panel of professional judges. In the case of the jury, the one question which has to be answered is the question of guilty or not guilty, and the factual findings supporting this conclusion are neither spelled out nor can they be challenged by one of the parties. The instruction given to the jury concentrates on this “ultimate issue” of the case. In this Tribunal, on the other hand, Trial Chambers cannot restrict themselves to the ultimate issue of guilty or not guilty; they have an obligation pursuant to Article 22(2) of the Statute, translated into Rule 88(C) of the Rules, to give a reasoned opinion.

170.    The Appeals Chamber recalls that Article 20(3) of the Statute provides that an accused shall be presumed innocent until proven guilty. This Article embodies a general principle of law, that the Prosecution bears the onus of establishing the guilt of the accused beyond reasonable doubt. With respect to the Trial Chamber’s Judgement, Rule 87(A) of the Rules clearly states 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. Although the Rules are silent as to whether the same standard applies at the fact-finding stage, and, if so, with respect to which facts, the ICTY Appeals Chamber has left no doubt that the standard of proof “beyond reasonable doubt” is not limited to the ultimate question of guilt: […]

171.    To support its argument that the Trial Chamber erroneously adopted a piecemeal approach to the evidence, the Prosecution refers to the Musema Appeal Judgement. There, the Appeals Chamber endorsed the view of the ICTY Appeals Chamber in the Tadić Judgement on Allegations of Contempt:

[A] tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all the evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear at first to be of poor quality, but it may gain strength from other evidence in the case. The converse also holds true.

172.    In the Appeals chamber’s view, the case law referred to by the Prosecution does not address the issue of the standard of proof applicable to any particular fact. The duty of the Trial Chamber to consider all the evidence does not relieve it from the duty to apply the required standard of proof to any particular fact.

173.    The Prosecution quotes as one of the examples for the alleged error of law by applying the standard of proof to individual items of evidence the Trial Chamber’s conclusions in paragraph 118 of the Trial Judgement. The Appeals Chamber notes that the Trial Chamber did not look at the testimony of the different witnesses in isolation, but considered it in the light of other evidence. It took into account the testimony of a Defence witness (Witness BLB), which created doubts as to the credibility of Witness LAH in general, and also that of Prosecution Witness NL, but found that it did not corroborate the testimony of Witness LAH. The Trial Chamber’s approach clearly follows the principle enunciated in the Tadić Judgement on Allegations of Contempt. Only at the end of this analysis does the Trial Chamber apply the standard of proof and determine whether the fact in question was proved beyond a reasonable doubt.

174.    It appears to the Appeals Chamber that the Prosecution’s argument does not clearly distinguish between the different stages of the fact-finding process which a Trial Chamber undertakes before it can enter a conviction: […]

In light of the above analysis, the Appeals Chamber agrees with the Prosecution that “applying the criminal standard of proof piecemeal to individual items of evidence” would amount to an error.

175.    The Appeals Chamber recalls that the presumption of innocence requires that each fact on which an accused’s conviction is based must be proved beyond a reasonable doubt. The Appeals Chamber agrees with the Prosecution’s argument that “if facts which are essential to a finding of guilt are still doubtful, notwithstanding the support of other facts, this will produce a doubt in the mind of the Trial Chamber that guilt has been proven beyond a reasonable doubt”. Thus, if one of the links is not proved beyond a reasonable doubt, the chain will not support a conviction.

226. The standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt.[1] This standard applies whether the evidence evaluated is direct or circumstantial.[2] The Appeals Chamber has previously endorsed an approach where, similar in parts to the present case, a Trial Chamber individually examined evidence with respect to a number of incidents and subsequently assessed the accused’s criminal responsibility for those incidents.[3]

458. 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 […].  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.

22. The Appeals Chamber further observes that in several instances, the Trial Chamber uses confusing language which could be viewed as shifting of the burden of proof onto the Defence to disprove the Prosecution’s case. In such instances, the Trial Chamber stated that “nothing in the evidence suggests” that a conclusion opposite to the one adopted by the Trial Chamber could be reached.[1] The Appeals Chamber finds this language misleading and stresses that the Trial Chamber is required not only to apply the appropriate standard but also to articulate it correctly. That said, the Appeals Chamber considers that, subject to the analysis of the parties’ specific challenges below, the Trial Chamber in fact meant to state that all reasonable doubt was eliminated on the basis of the evidence cited in all such instances.

231. […] It recalls that the Prosecution bears the burden of establishing beyond reasonable doubt facts material to the guilt of an accused and suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[2] […]

The Appeals Chamber recalled the standard of proof for alleged Rule 68 violations:

13. To establish a violation of the Rule 68 disclosure obligation, the Defence must (i) establish that additional material exists in the possession of the Prosecution; and (ii) present a prima facie case that the material is exculpatory.[1]

16. […] The responsibility for disclosing exculpatory material rests on the Prosecution, and the determination of what material meets Rule 68 disclosure requirements is primarily a facts-based judgement, falling within the Prosecution’s responsibility.[2]

17. The Appeals Chamber cannot fault the Trial Chamber for requesting Mr. Nzirorera to provide an “evidentiary basis” for his claims that the material fell within the scope of Rule 68, contrary to the assertions of the Prosecution.[3] The Trial Chamber is entitled to assume that the Prosecution is acting in good faith.[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] […]

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.

272. […] The Appeals Chamber recalls that the standard of proof beyond reasonable doubt requires a finder of fact to be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[1] It is further recalled that a trial chamber does not have to discuss every possible hypothesis or inference it may have considered, as long as it is satisfied that the inference it retained was the only reasonable one.[2]

599.     […] The Appeals Chamber recalls that where a fact on which a conviction relies is established on the basis of an inference, that inference must be the only reasonable one available on the evidence.[1]

[…]

669.     The Trial Chamber observed that, when the Prosecution relied upon proof of a certain fact, such as the state of mind of the accused by inference, it considered whether that inference was the only reasonable inference that could have been made based on the evidence and that, where that inference was not the only reasonable one, it found that the Prosecution had not proved its case.[2] The Appeals Chamber finds that the Trial Chamber correctly set out the applicable law.[3]