B.  The Burden and Standard of Proof at Trial: General principles governing assessment of evidence by the Trial Chamber

22.       Musema has raised six preliminary points largely based on what he alleges to be errors in the Trial Chamber’s observations as to how it intended to or did assess the evidence at trial. He claims that the Trial Chamber consistently committed the said errors in its assessment of the evidence and that the failure of the Trial Chamber to apply the correct burden and standard of proof to the facts before it meant that he was wrongly convicted.[37]

23.       Before examining the Trial Chamber’s precise factual findings, the Appeals Chamber will first briefly consider these general allegations.

1.      Burden and standard of proof

(a)        Arguments of the parties

24.       Musema alleges that the Trial Chamber "consistently erred in its statements of the law regarding the burden and standard of proof."[38]   He maintains that the Trial Chamber failed to apply the correct test in assessing evidence, whereby it is the duty of the Prosecution,  save in certain cases, to prove the guilt of the accused beyond all reasonable doubt.[39]  He cited the Tadic Appeal Judgement where "the Appeals Chamber found that the Trial Chamber had, in effect, wrongly directed itself on the law."[40]

25.       Musema submits that the Trial Chamber’s approach is based on the premise that the Defence had a burden to discharge in this case, and committed this error throughout the section of the Trial Judgement entitled "Evidentiary Matters."[41]   Referring to the Trial Chamber’s finding in paragraph 41 that it had assessed the relative weight and probative value to be accorded to each piece of evidence[42]  he argues that  "it is wrong to talk of probative value in relation to Defence evidence and contends that "testimony and exhibits are only offered by the Defence in order to cast doubt on allegations made by the Prosecution."[43]

26.       Musema refers in particular to the statement by the Trial Chamber in paragraph 52 of the Trial Judgement that "the absence of forensic evidence corroborating eyewitness testimony shall in no way affect the assessment of those testimonies".[44]  The Appellant is of the view that this is a "totally incorrect statement of the tests to be applied to evidence".[45]  He further submits that the Trial Chamber stated that the presence of such evidence would also not affect the assessment of testimony, whereas in fact, corroborative evidence would strengthen the testimony under consideration.[46]  Musema also submits that "testimony which is not corroborated by forensic evidence must necessarily be treated with greater caution than testimony which is so corroborated."[47]  He avers that such a view is in fact expressed in paragraph 75 of the Trial Judgement, where the Trial Chamber stated that "any evidence which is supported by other evidence logically possesses a greater probative value than evidence which stands alone, unless both pieces of evidence are not credible."  This statement, he maintains, "directly contradicts the principle" laid down above.[48]

27.       The Prosecution does not dispute that: (i) the principle of presumption of innocence governs proceedings before the Tribunal; (ii) the burden of proof rests on the Prosecution; and (iii) as regards the standard of proof, it is the duty of the Prosecution to prove the guilt of the accused beyond a reasonable doubt.[49] However, the Prosecution disputes the allegation that the Trial Chamber erred in the application of those standards and in the evaluation of the evidence. It submits that the Trial Judgement should be considered in its entirety and that a review of the various counts and findings would give the impression that the correct standard was applied.[50] In support of its contention, the Prosecution cites several paragraphs in the Judgement which, in its opinion, show that the Trial Chamber did not at all shift the burden of proof, but that on the contrary, the Chamber adopted the correct approach .[51]  It is the Prosecution’s submission that Musema’s arguments are premised on a misunderstanding of the manner in which evidence may be evaluated under the rules and regulations governing proceedings before the Tribunal. In other words, "in the legal regime of the Tribunal, a Trial Chamber has discretion to decide on the basis of a free evaluation of all of the evidence in a case, whether an accused is guilty or not guilty of the crimes charged."[52] Accordingly,  the fact that the Chamber considered whether evidence presented by the Defence was sufficient to cast reasonable doubt on the Prosecution case, does not imply that it was placing a burden of proof on the Appellant or imposing a lower standard of proof on the Prosecution.[53]  As regards corroboration of eyewitness testimony, the Prosecution submits that there is no provision in the Tribunal’s Rules of Procedure and Evidence that requires a Trial Chamber, in assessing eyewitness testimony, to take into consideration the presence or absence of corroborative forensic evidence.[54] Similarly, a Trial Chamber is not required to state that it assessed such testimony with greater care and caution.[55]

b.      Discussion

28.       The parties agree that the appropriate standard of proof to be applied is that of proof beyond reasonable doubt, and that an accused shall benefit from the presumption of innocence. However, Musema argues that the Trial Chamber erred by failing to apply the correct burden of proof. In support of this argument, Musema refers mainly to the statement made in paragraph 32 of the Trial Judgement, to wit:

[t]he Chamber has considered the charges against Musema on the basis of testimony and exhibits offered by the Parties to prove or disprove allegations made in the Indictment.[56]

29.       To rebut the allegation that the Trial Chamber committed an error, the Prosecution relies chiefly on the observation made by the Chamber in paragraph 649, at the start of the factual findings:

The Chamber has considered the testimonies of the witnesses, the evidence in support of the contested facts and the alibi of Musema. It shall now present in chronological order, its factual findings thereon. The burden of proof being on the Prosecutor, the Chamber will first consider the Prosecutor’s evidence, and then, if the Chamber deems there to be a case to answer, it will consider the alibi before finally making its findings.

30.       The issue before the Appeals Chamber is whether the statement made by the Trial Chamber in paragraph 32 of the Trial Judgement shows that the Trial Chamber incorrectly applied the relevant standard and, in particular, whether as a result, the burden of proof was ultimately placed on the Defence. It is a basic rule of interpretation that a proposition should not be construed out of context, but rather, in relation to the context. With respect to Musema’s allegations concerning paragraph 32 of the Trial Judgement, the Appeals Chamber considers that the Trial Chamber was merely referring to evidence proffered by the parties and that it was not imposing on the Defence a duty to prove or disprove the allegations.

31.       Musema refers to several other paragraphs of the Trial Judgement in support of his contention that the burden of proof was shifted. He cites the Trial Chamber’s finding that the Defence "did not impair the credibility"[57]  of a witness or establish that the testimony of a witness was "untruthful in any material respect."[58]  Musema also relies on the general finding made by the Trial Chamber that it "has assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial[59] and, that "[t]he absence of forensic or real evidence shall in no way diminish the probative value of the evidence which is provided to the Chamber; in particular, the absence of forensic evidence corroborating eyewitness testimonies shall in no way affect the assessment of those testimonies […] ."[60]

32.       Having considered the above statements made by the Trial Chamber, the Appeals Chamber finds no reason to hold that the Trial Chamber shifted the burden of proof. The Appeals Chamber finds, on the contrary, that the Trial Chamber’s statements reflect a proper application of the rules governing trial proceedings and the presentation of evidence. Accordingly, the Appeals Chamber dismisses Musema’s arguments on this point.

33.       Furthermore,  Musema asserts that he was required to prove his alibi. The issue as to whether the Trial Chamber shifted the burden of proof with respect to alibi and required Musema to satisfy the Chamber of his innocence will be considered in the third part of this first ground of appeal.[61]

2.         Corroboration of witness testimony

(a)        Arguments of the parties

34.       Although Musema does not allege that the Trial Chamber erred in not holding that witness testimonies require corroboration, he submits that where such testimony (that is, that of a single eyewitness) is the only evidence adduced,  it must be viewed with extreme caution.[62]  He avers that the high standard of proof required by the courts worldwide in such cases must equally prevail before this Tribunal.

35.       For its part, the Prosecution argues that to require that the Trial Chamber exercise care and caution when examining testimonies suggests that the Trial Chamber must consider the presence or absence of corroboration when evaluating eyewitness testimony.  But then, the Tribunal’s Statute and Rules of Procedure and Evidence do not provide for any such requirement, nor do they require a Trial Chamber to articulate the legal standards used in assessing evidence. In any event, it is the Prosecution’s submission that since the Trial Chamber meticulously considered the uncorroborated testimony of eyewitnesses (for example, in paras. 713, 845 of the Trial Judgement),  Musema’s right to a fair trial was respected.[63]

(b)        Discussion

36.       One of the duties of a Trial Chamber is to assess the credibility of witnesses.  In discharging that duty, the Trial Chamber takes into account all the circumstances of the case.  As stated in the Aleksovski Appeal Judgement, "[w]hether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case."[64]  It may be that a Trial Chamber would require the testimony of a witness to be corroborated, but according to the established practice of this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia (ICTY), that is clearly not a requirement.[65]

37.       In the instant case, the Trial Chamber affirmed that it "may rule on the basis of a single testimony if, in its opinion, that testimony is relevant and credible."[66] It further stated that:

[…] it is proper to infer that the ability of the Chamber to rule on the basis of testimonies and other evidence is not bound by any rule of corroboration, but rather on the Chamber’s own assessment of the probative value of the evidence before it.

The Chamber may freely assess the relevance and credibility of all evidence presented to it. The Chamber notes that this freedom to assess evidence extends even to those testimonies which are corroborated: the corroboration of testimonies, even by many witnesses, does not establish absolutely the credibility of those testimonies.[67]

38.       The Appeals Chamber is of the view that these statements correctly reflect the position of the law regarding the Trial Chamber’s discretion in assessing testimonies and the evidence before it.

3.         The Trial Chamber’s treatment of documentary evidence

(a)        Arguments of the parties

39.       Musema challenges the Trial Chamber’s findings with respect to the burden of proof  applicable to the admissibility of documentary evidence and, in particular,  alleges that the Trial Chamber erred in placing a burden on him to prove that the documents he tendered were reliable.[68] He submits that "a precondition of reliability has caused evidence in their determination, documents in their determination, to be given a standard which, as far as the Accused is concerned, negates the principle that he doesn’t have to prove his case."[69] He contends that the Trial Chamber erred in finding that documentary evidence should only be admissible if proven to be reliable, on a balance of probabilities. He asserts that the Defence is not required to prove anything, the only burden on it being to cast reasonable doubt on the Prosecution case.[70]  Musema submits that his argument in this section relates to all the documents he produced at trial.[71]

40.       Furthermore, Musema argues that the Trial Chamber erred when it stated that the source of a document could be important in determining its reliability and that, "evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused."[72]  Musema submits that, on the contrary, since all persons are entitled to equal treatment before the Tribunal,  "documents produced by him cannot be accorded a lesser status than documents produced by others".[73]

41.       The Prosecution submits that Musema has failed to point to any instances whatsoever where the Trial Chamber erred.  It asserts that the Trial Chamber was at liberty to apply the balance of probabilities standard to all documentary evidence, in view of its inherent discretion in the admissibility and assessment of evidence.[74]  At the same time, the Prosecution avers that Musema has failed to demonstrate how that standard affected the admissibility of any of the documents he tendered, it being understood that none was excluded,[75]  and further submits that it is wrong to hold the view that documentary evidence produced by the Defence should not be assessed with a view to determining its reliability.[76]  It affirms that the Trial Chamber must consider the relevance and, therefore, the reliability of a document, and that to say that the burden of proving the reliability of a document lies on the accused is not the same thing as saying that the accused bears the burden of proving his innocence or  of showing that he is not guilty. The Prosecution submits that when an accused produces a document in evidence, he or she is required to show that the document is reliable to a certain extent. However, the  burden of proof lies basically with the Prosecution throughout the entire case.[77]

42.       The Prosecution further submits that the source of a document may be properly taken into account by a Trial Chamber in assessing the reliability and credibility of the document, even where that source is the Accused himself.[78]  It maintains that it is not unreasonable for a trier of fact to treat evidence as having less weight, when the person giving the evidence has a personal interest in the evidence being accepted.[79]  It is the Prosecution’s view that "[s]ince an accused’s testimony can be examined for possible bias, the accused’s role as the source of a document that is presented in support of his innocence may be reviewed for possible bias."[80]  In the case of documents produced in support of Musema’s alibi, the Trial Chamber was right to find that evidence in support of an alibi produced from a source other than the Accused may have greater probative value.[81]

(b)        Discussion

43.       The Appeals Chamber will first deal with the argument that reliability should not be assessed in considering the admissibility of the evidence tendered by the Defence at trial. Musema contends that "the first sentence of paragraph 56…contains the mischief in this Judgement."[82]  The said paragraph 56 is found in the Section of the Trial Judgement entitled "The burden of proof in relation to admissibility". In response to a question from the Appeals Chamber at the hearing on appeal, Musema submitted that the use of the word ‘reliability’ in this section, illustrates that the Trial Chamber was not referring to admissibility,  but rather to the final evaluation of the evidence. Musema stated that "if you look at the Judgement, they have looked at reliability as the key phrase to seek whether a witness is to be believed or disbelieved. If they find him unreliable, they disbelieve; if he’s reliable, they believe him."[83]

44.       Musema has not provided any example of a case where documentary evidence tendered by him before the Trial Chamber was not accepted because he failed to establish, on the balance of probabilities, that it was reliable.  As a preliminary point, the Appeals Chamber finds that the fact that the Section being referred to relates specifically to "admissibility"  is, at first glance, proof that the Trial Chamber intended to apply  it to admissibility of evidence. There is nothing to suggest instantly that in this Section, the Trial Chamber was ruling on the burden of proof in relation to the final assessment of evidence and that, in doing so, it was shifting the burden of proof.

45.       The Trial Chamber held as follows:

54.        Considered as a distinct form of evidence, documentary evidence raises a number of particular issues, both in the assessment of its admissibility and the assessment of its probative value.

The burden of proof in relation to admissibility

55.        The Chamber notes that in order for a document to be admissible as evidence, the Party that seeks to rely on the document must first prove that it meets with the standards of relevance and probative value (discussed above) laid out by Sub-Rule 89(C). In other words, the burden of proof of the reliability (which, as discussed above, "runs through" the criteria of admissibility, namely relevance and probative value) of the document lies on the Party that seeks to rely on the document. When documents are admitted with the consent of both Parties, as has occurred in the instant case, the issue of proof of reliability does not arise. A similar situation arises when a document is admitted by way of judicial notice, as a "fact of common knowledge" under Rule 94, since no proof of the fact is required. When, however, the reliability of documentary evidence is questioned, the issue arises as to the required standard of proof of reliability for the admission of evidence.

56.        With certain exceptions, discussed below, the Chamber is of the opinion that the standard of proof required to establish the reliability of documentary evidence is proof on the balance of probabilities. The admission of evidence requires, under Sub-Rule 89(C), the establishment in the evidence of some relevance and some probative value. Accordingly, the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber. The admission of evidence does not require the ascertainment of the exact probative value of the evidence by the Chamber; that comes later. Admission requires simply the proof that the evidence has some probative value. Different standards of proof are appropriate for the process of admission and the process of determining the exact probative value of the same evidence.

57.        Furthermore, the determination of admissibility does not go to the issue of credibility, but merely reliability.  Accordingly, documentary evidence may be assessed, on the balance of probabilities, to be reliable, and as a result admitted. Later, that same evidence may be found, after examination by the Chamber, not to be credible.

58.        The circumstances which give rise to exceptions to this general rule include (but are not limited to) those circumstances in which the rights of the Accused are threatened by the admission of the evidence in question, or wherever the allegations about the unreliability of the evidence demand for admissibility the most exacting standard, consistent with the allegations. In such cases, a standard of proof of "beyond reasonable doubt" may, in the opinion of the Chamber, be justified.[84]

46.       Rule 89(C) provides that "[a] Chamber may admit any relevant evidence which it deems to have probative value." This means that for evidence to be admissible, each party must demonstrate its relevance and probative value.  Under the case-law of the Appeals Chamber of ICTY[85] and ICTR,[86] it is established that the reliability of a statement made out of court may also be a relevant factor for a Trial Chamber to consider in determining admissibility.  In this regard, the Appeals Chamber of ICTY held as follows:

[…] the reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not "probative" and is therefore inadmissible.[87]

47.       In the instant case, the Trial Chamber noted that "the burden of proof of the reliability …  of the document lies on the party that seeks to rely on the document", and that the requisite standard of proof was proof on the balance of probabilities.[88]  Without ruling on the issue as to whether such was the appropriate standard, the Appeals Chamber holds that the Trial Chamber did not err in stating that for a document to be admissible as evidence, the Party  relying on it must establish that it has sufficient indicia of reliability.

48.       The Trial Chamber also found that, "the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber."[89]  It is the view of the Appeals Chamber that, in that sentence, the Trial Chamber was making a distinction between admissibility and the final assessment of evidence.

49.       As to the second argument that the Trial Chamber erred in stating that the source of a document could be important in determining the reliability of a document, the Trial Chamber held that:

…the source of a document may, taken in context, impact upon the assessment of the reliability or credibility (or both) of the document. For example, evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused. While noting this, the Chamber emphasizes that such an understanding of the relationship between the source of documentary evidence and its probative value must in no way be interpreted as a presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its assessment of the probative value of documentary evidence to interfere with the right of the Accused to a fair trial.[90]

50.       The first and second arguments overlap.  Again, Musema has not given any instances where he attempted to adduce evidence before the Trial Chamber,  which evidence the Trial Chamber rejected on the grounds that Musema himself was the source thereof. Every Trial Chamber is required, in assessing evidence, to determine its overall reliability and credibility.  In the instant case, the Trial Chamber stated that it had "assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial."[91] It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document.  Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.

4.         False testimony and Rule 91(B)

(a)        Arguments of the parties

51.       Musema submits that the Trial Chamber erred in noting that, if he had seriously intended to make allegations of false testimony,  such allegations should [have been] submitted to the Tribunal in proper motion form, under Rule 91(B)."[92] He argues that the Defence would be put in "an untenable position" if it had to file a motion in order to seriously allege false testimony.[93]  Musema asserts that the Defence is only required to cast reasonable doubt on the Prosecution evidence, and is not required to institute proceedings against one or the other Prosecution witness in order to prove that they are lying.[94] On the contrary, under Rule 91(B), only the Trial Chamber has the power to initiate such proceedings.[95] Musema submits that the Trial Chamber’s misapplication of the law placed an extra burden on him and implied that no allegation of false testimony would be considered unless proceedings in respect thereof were instituted under Rule 91.[96]

52.       In the Prosecution’s opinion, Musema’s allegations reveal a misinterpretation both of the Trial Judgement and of Rule 91(B).[97]  First, the Prosecution submits that under case-law, an accused may bring an allegation of false testimony before the Chamber,[98]  and that once proceedings are instituted under the above-mentioned provision,  the onus is on the party raising the allegation to satisfy the Chamber that there are strong grounds for believing that a witness has given false testimony.[99]  Secondly, the Prosecution states that Musema fails to distinguish "between testimony that is incredible and testimony that constitutes false testimony."[100]  It submits that the Trial Chamber simply meant to state that "challenges that go beyond an attack on credibility and implicate averments that a witness has committed perjury must be initiated and pursued consistently with  Rule 91(B).[101]   The Prosecution further submits that at no point, did the Trial Chamber impose on the Defence the additional burden alleged.[102]

(b)        Discussion

53.       Musema has not provided any instances in which he suffered prejudice as a result of the Trial Chamber’s alleged error of law.  On the contrary, he seems to be making a general allegation concerning his entire case, that "[b]y its misapplication of the law [the Trial Chamber] has misjudged the challenges to evidence made by the Defence."[103] 

54.       His allegation relates to paragraphs 98 and 99 of the Trial Judgement, where the Trial Chamber stated:

98.           On a number of occasions in this case direct, or indirect, implications were made by one of the Parties that one or more of the witnesses had deliberately or otherwise misled the Chamber. The Chamber notes that such submissions, if seriously intended as allegations of false testimony, should be submitted to the Tribunal in proper motion form, under Rule 91(B).

99.           The Chamber reaffirms its position that false testimony is a deliberate offence, which presupposes wilful intent on the part of the perpetrator to mislead the Judges and thus to cause harm, and a miscarriage of justice. In such a motion, the onus is on the party pleading the case of false testimony to prove the falsehood of the witness’ statements and to prove either that these statements were made with harmful intent or that they were made by a witness who was fully aware both of their falsehood and of their possible bearing upon the Judge’s decision. In order to establish a strong basis for believing that the witness may have knowingly and wilfully given false testimony, it is insufficient to raise only doubt as to the credibility of the statements made by the witness. The Chamber affirms its opinion that,  inaccurate statements cannot, on their own, constitute false testimony; an element of wilful intent to give false testimony must exist. As the Appeals Chamber has previously confirmed, there is an important distinction between testimony that is incredible and testimony which constitutes false testimony. The testimony of a witness may, for one reason or another, lack credibility even if it does not amount to false testimony within the meaning of Rule 91.[104]

55.       Musema’s contention that the Defence would be placed in an untenable position if it was required to file a motion alleging false testimony each time it wished to impugn the credibility of a Prosecution witness, relates to the right of an accused to cross-examine Prosecution witnesses so as to  discredit them. Article 20(4)(e) of the Statute, which provides for the rights of the accused, entitles an accused "[t]o examine, or have examined, the witnesses against him or her …". Rule 90(G) of the Rules, relating to the testimony of witnesses, expressly gives a party at trial the right to cross-examine a witness on matters affecting the credibility of the witness. The rule  provides that "[c]ross-examination shall be limited to points raised in the examination-in-chief or matters affecting the credibility of the witness […]". Furthermore, Rule 91 of the Rules, which deals with the initiation of criminal proceedings by a Chamber in case of false testimony, does not require that a motion be brought to that effect in order to impugn the credibility of the witness. That Rule provides as follows:

False Testimony under Solemn Declaration

(A)          A Chamber, on its own initiative or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so.

(B)           If a Chamber has strong grounds for believing that a witness may have knowingly and wilfully given false evidence, the Chamber may direct the Prosecutor to investigate the matter with a view to the preparation of an indictment for false testimony.

[…]

56.       The Appeals Chamber has considered the Trial Chamber’s observation that "direct or indirect implications were made by one of the Parties that one or more of the witnesses had deliberately or otherwise misled the Chamber" and that "such submissions, if seriously intended as allegations of false testimony, should be submitted to the Tribunal in proper motion form, under Rule 91(B)".  In particular, the Appeals Chamber has considered the issue whether that observation invariably suggests that a Party seeking to impugn the credibility of a witness at trial is required to file a motion under Rule 91.

57.       However, the Appeals Chamber is of the opinion that, construed in the context of the Trial Judgement, the observation merely translates the Trial Chamber’s intention to highlight the impropriety of false testimony, and to remind the parties that upon being convinced that a witness had given false testimony before the Chamber, they could refer the matter to the Trial Chamber for the possible initiation of proceedings as provided for under Rule 91. Incidentally, the Appeals Chamber notes that Musema has failed to show that the Trial Chamber excluded any evidence ensuing from questions put in cross-examination which tended to impugn the credibility of Prosecution witnesses. It appears from the Trial Judgement that after a closely argued cross-examination touching on the credibility of witnesses,  the Trial Chamber found at least one of the witnesses not to be reliable.[105]

5.         The impact of trauma

(a)        Arguments of the parties

58.       Musema alleges that the Trial Chamber erred by holding in paragraph 100 of the Trial Judgement that it had considered the impact of trauma on the testimony of witnesses. He submits that such a consideration was appropriate only for Prosecution witnesses, and that it was therefore misplaced.[106] Musema argues that the testimony of a Prosecution witness is either credible or not credible and that if the credibility of such testimony is vitiated, the testimony must be regarded as not credible, notwithstanding the origin of the factors affecting its credibility.[107]  However, he asserts that the Trial Chamber’s reasoning is premised upon the belief that the testimony of Prosecution witnesses is credible.[108]  Musema submits that the Defence witnesses did not benefit from such latitude, which again demonstrates that a higher standard of proof was imposed on defence evidence.[109]

59.       The Prosecution submits that Musema has misconstrued and misunderstood the language used in the Trial Judgement, and that he has shown a lack of familiarity with the principles underlying the ongoing practice in this Tribunal.[110]  It submits that "the Trial Chamber correctly determined that a witness’ experiences with traumatic events is a relevant factor to be considered during the evaluation of evidence received from such a witness."[111]  Finally, the Prosecution submits that Musema has failed to show how and where the Trial Chamber failed to consider the effect that past traumatic events may have had on Defence witnesses.  The Prosecution submits that further allegations, unsupported and unsubstantiated, are insufficient to sustain the Appellant’s burden in this regard."[112]

(b)        Discussion

60.       Paragraph 100 of the Trial Judgement reads as follows:

Many of the witnesses who testified before the Chamber in this case have seen or have experienced terrible atrocities. They, their family or their friends have, in many cases, been the victims of such atrocities. The trauma that may have arisen, and may continue to arise, from such experiences is a matter of grave concern to the Chamber. The Chamber notes that recounting and revisiting such painful experiences is likely to be a source of great pain to the witness, and may also affect her or his ability fully or adequately, to recount the relevant events in a judicial context. The Chamber has, accordingly, considered the testimony of those witnesses in this light.

61.       Musema alleges that the Trial Chamber erred in its observation concerning the impact of trauma on witnesses.  First, as to the allegation that Defence witnesses were not treated in the same manner as Prosecution witnesses, Musema has put forward no proof in support thereof. As far as can be deduced from the context in which the Trial Chamber made the said observation (that is, in the Section devoted generally to Evidentiary Matters), it is the Appeals Chamber’s understanding that the observation in issue applies to both Prosecution and Defence witnesses. Consequently, the Appeals Chamber holds that the Trial Chamber, no doubt,  intended that the said consideration or observation should apply to both Prosecution and Defence witnesses.

62.       The Appeals Chamber notes that Musema has not cited a single instance where the Trial Chamber wrongly applied this standard to a Prosecution witness, or where it failed to apply it to a Defence witness, whereupon said witness suffered any prejudice.  Once again, it is apparent that Musema’s allegation is expressed in general terms and relates to the assessment of the overall evidence.

63.       The issue here is whether the Trial Chamber’s consideration of the impact of trauma was in accordance with the law. The established practice of both the Trial Chambers and the Appeals Chamber supports a finding that it was. Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness. This approach was properly adopted by the Trial Chamber in this case. Contrary to Musema’s assertion, the Appeals Chamber finds that such an approach is, in fact, favourable to him. Indeed, the fact that the Trial Chamber should take into account the impact of trauma on a witness’s memory implies the Trial Chamber’s awareness of such factors (as in the case of the passage of time) and of their possible effect on the ability of the witness to recount events impartially and accurately.

6.      Protected witnesses

(a)        Arguments of the parties

64.       Musema alleges that the Trial Chamber erred by failing to consider the fact that all of the Prosecution witnesses testified anonymously. He submits that "there is a special need for caution when testimony is given by witnesses who will not do so under their own name".[113]   Musema submits, in particular, that testifying in that manner, a protected witness can show disregard for the truth with all impunity since the veracity of his testimony cannot be challenged by the public.[114]

65.       It is the Prosecution’s view that Musema’s argument is based on his belief that the mere status as a protected witness diminishes the credibility of a witness.[115]  Yet, the Prosecution submits, there is no rule which requires a Trial Chamber to exercise "special caution" in assessing the testimony of a protected witness.[116]  Protected witness status is a factor that a Trial Chamber may consider,  but it is just one of the many factors that it may take into account.  The Prosecution contends that it does not follow that the Trial Chamber must exercise greater caution in assessing the testimonies of protected witnesses.[117] Musema has failed to demonstrate how such a rule could apply before this Tribunal.[118]

(b)        Discussion

66.       Musema’s contention is not that the Trial Chamber erred by ordering the non-disclosure of the identities of Prosecution witnesses, but that special caution should have been exercised by the Trial Chamber in considering the testimony of such protected witnesses.

67.       Article 21 of the Statute which governs the protection of victims and witnesses before the Tribunal, provides that "protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity." Rule 75(A) of the Rules, entitled "Measures for the Protection of Victims and Witnesses", provides that a Trial Chamber may "order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused". Furthermore,  Rule 69(A) provides that "[i]n exceptional circumstances, either of the parties may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Chamber decides otherwise."

68.       It emerges from ICTY case-law that, in discharging its duty to order appropriate measures for the protection of victims and witnesses,

            the Tribunal has to interpret the provisions within the context of its own unique legal framework in determining where the balance lies between the accused’s right to a fair and public trial, the right of the public to access information and the protection of victims and witnesses. How the balance is struck will depend on the facts of each case.[119]

In respect of a Trial Chamber’s power to order the non-disclosure of the identity of a victim or witness pursuant to Rule 69(A), it was held that:

Rule 69(A) requires the Prosecution to first establish exceptional circumstances.  This is in accordance with the balance carefully expressed in Article 20.1: that "proceedings are conducted […] with full respect for the rights of the accused and due regard for the protection of victims and witnesses".  As the Prosecution correctly concedes, the rights of the accused are made the first consideration, and the need to protect victims and witnesses is a secondary one.[120]

69.       Case-law acknowledges that there is inherent tension between the accused’s right to a fair and public trial, on the one hand, and the protection of victims and witnesses, on the other. Moreover, under case-law, it is indisputably the duty of the Trial Chamber to determine that exceptional circumstances exist which warrant non-disclosure of the identity of victims or witnesses and such determination depends on "the facts of each case".

70.       In the instant case, the Trial Chamber granted, on 20 November 1998, a Prosecution motion seeking protective measures for its witnesses.[121]  In its decision, the Trial Chamber held that "the appropriateness of protective measures should not be based solely on the representations of the parties.  Indeed, their appropriateness needs also to be evaluated in the context of the entire security situation affecting the concerned witnesses".[122]  The Trial Chamber found the "fears of the Prosecutor as being well founded", and also found that there were "sufficient factual grounds" for the imposition of protective measures under Rule 75.[123]  As regards the non-disclosure of the identities of Prosecution witnesses, the Trial Chamber held that the Prosecution’s arguments concerning the fear of reprisals and of the witnesses being attacked showed "the existence of exceptional circumstances warranting the non-disclosure of the identity of witnesses deemed to be in danger or at risk".[124]

71.       In this instance, the Trial Chamber found that exceptional circumstances existed which justified the non-disclosure of the identities of Prosecution witnesses.  In the opinion of the Appeals Chamber, the Trial Chamber was, in the circumstances, bound to consider the testimony of these witnesses in the same way as that of witnesses who were not afforded protective measures.  Indeed, when assessing the probative value of the testimony of a protected witness, the Trial Chamber may take into consideration his status as protected witness, but it is incorrect to say that a Trial Chamber must exercise "special caution" in assessing such evidence.