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11.10.10 Expert evidence
It is difficult to determine how much weight the Chambers accord to expert witnesses.
Generally, expert witnesses are only referred to in relation to general matters, not to
matters which directly concern the guilt of the accused. It is, however, close to
impossible to state with certainty that the Chambers have not relied on expert
witnesses in their finding of guilt. No clear guidance has been given as to how to
determine the weight of an expert opinion, or why one is considered to be more
valuable than another. The Tribunals did nevertheless state that they do not
necessarily accord more weight to an expert who is more experienced than another.
216
11.10.11 Standard on appeal
The task of assessing the evidence and giving it its appropriate weight, which includes
the determination of the credibility of witness statements, lies with the Trial Chamber.
Therefore, ‘the Appeals Chamber must give a margin of deference to a finding of
fact reached by a Trial Chamber’.
217
Only where no reasonable tribunal of fact could
have reached the conclusion of guilty beyond reasonable doubt will the Appeals
Chamber intervene.
218
This is understandable in light of the fact that an appeal ‘is
211
Prosecutor v Akayesu,
Appeal Judgment (1 June 2001), Case No ICTR-96–4-A, para 155.
212
Ibid,
para 156.
213
Ibid.
214
Ibid.
215
Ibid.
216
Prosecutor v Kunarac,
Appeal Judgment (12 June 2002), Case No IT-96–23-A, para 21.
217
Musema,
Appeal Judgment (16 November 2001), para 18;
Akayesu,
Appeal Judgment (1 June 2001),
para 232;
Prosecutor v Tadic,
Appeal Judgment (15 July 1999), Case No IT-94–1-A, para 64;
Furundzija,
Appeal Judgment (21 July 2000), paras 37, 63.
Chapter 11: Evidence before the Ad Hoc Tribunals
323
not an opportunity for a party to have a
de novo
review of their case’.
219
Thus, the
Trial Chamber, having seen and heard the witnesses is in a much better position to
determine their credibility.
220
The Trial Chambers have nonetheless a duty to provide a ‘reasoned opinion in
writing’ (Art 22(2) of the ICTY Statute; Art 21(2) of the ICTR Statute and r 88(C) of
the Rules) explaining how they reached their conclusions.
221
They are thereby not
required to give reasoning for each step they took in the process of weighing and
assessing the evidence.
222
There is no guiding principle on the extent to which Trial
Chambers have to be specific about their reasons to reject or accept a witness
testimony as reliable and credible. The reliability and credibility of witness testimony
has to be determined on a case by case basis.
223
In addition, the Appeals Chamber of the ICTY has stated that although the
evidence produced may not have been referred to by a Trial Chamber, based on the
particular circumstances of a given case, it may nevertheless be reasonable to assume
that the Trial Chamber had taken it into account.
224
This is particularly so in the
evaluation of witness testimony, including inconsistencies and the overall credibility
of a witness. A Trial Chamber is not required to set out in detail why it accepted or
rejected a particular testimony.
225
Thus, in the
Celebici
case, the Appeals Chamber of
ICTY stated that:
[t]he Trial Chamber is not obliged in its Judgment to recount and justify its findings
in relation to every submission made during trial. It was within its discretion to
evaluate the inconsistencies highlighted and to consider whether the witness, when
the testimony is taken as a whole, was reliable and whether the evidence was credible.
Small inconsistencies cannot suffice to render the whole testimony unreliable.
226
In conclusion, factors, such as traumas, time lapse, language problems, cultural
barriers, and similar factors, which are normally perceived as undermining a witness
statement, in the tribunals, are used to explain inconsistencies and tend to be
perceived as increasing, rather than decreasing, the reliability and credibility of the
testimony.
218
Musema,
Appeal Judgment (16 November 2001), para 17.
219
Ibid.
220
Aleksovski,
Appeal Judgment (24 March 2000), para 63;
Kayishema and Ruzindana,
Appeal Judgment
(1 June 2001), para 319.
221 ICTY Rules, r 98
ter
(C). In
Furundzija,
Appeals Judgment (21 July 2000), para 69, the ICTY relied on
ECHR jurisprudence, stating that the right to a reasoned opinion is an aspect of the fair trial
requirement embodied in Arts 20 and 21 of the Statute.
222
Prosecutor v Delalic,
Appeal Judgment, Appeals Chamber (20 February 2001), Case No IT-96–21-A,
para 481.
223
Ruiz Torija v Spain,
ECHR Judgment (9 December 1994), para 29, cited in
Furundzija,
Appeal Judgment
(21 July 2000), para 69.
224
Musema,
Appeal Judgment (16 November 2001), para 19;
Akayesu,
Appeal Judgment (1 June 2001),
para 306.
225
Musema,
Appeal Judgment,
ibid,
para 20;
Akayesu,
Appeal Judgment,
ibid,
para 306.
226
Prosecutor v Delalic and Others,
Appeal Judgment, Appeals Chamber (20 February 2001), Case No IT-
96–21-A, para 498.
CHAPTER 12
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