Judges

Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

45. Following the Judgement of the ICTY Appeals Chamber in the case of Prosecutor v. Furundžija, the Appeals Chamber held in Akayesu that “there is a presumption of impartiality that attaches to a Judge or a Tribunal and, consequently, partiality must be established on the basis of adequate and reliable evidence.”[1] On appeal, it is for the appealing party to rebut this presumption of impartiality. As stated in Furundžija in respect of a reasonable apprehension of bias, the Appellant bears the burden of adducing sufficient evidence to satisfy the Appeals Chamber that the Judges were not impartial.[2] In Furundžija the ICTY Appeals Chamber held that there is “a high threshold to reach in order to rebut the presumption of impartiality” and recalled that “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established’”.[3] The Appeals Chamber recently confirmed this position in the Judgement in the case of Rutaganda v. Prosecutor.[4]

[1] Akayesu Appeal Judgement, para. 91, following Furundžija Appeal Judgement, paras. 196, 197.

[2] Furundžija Appeal Judgement, para. 197.

[3] Furundžija Appeal Judgement, para. 197 (quoting Mason J. in Re JRL; Ex parte CJL (1986) CLR 343, p. 352).

[4] See Rutaganda Appeal Judgement, paras. 39-125.

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Notion(s) Filing Case
Decision on Disqualification - 26.06.2009 KARADŽIĆ Radovan
(IT-95-05/18-AR15.1)

While Rule 15(B)(iii) of the Rules clearly states that there is no interlocutory appeal from a decision by the panel of three judges, it does not set out what avenues are available should a party wish to challenge the finding of the President on the merits of an application for disqualification pursuant to Rule 15(B)(ii) of the Rules. Referring to the former version of Rule 15(B) of the Rules, the Appeals Chamber concluded:

7. […] In interpreting the previous version of the Rule, the Appeals Chamber in Prosecutor v. Galić found that the Presiding Judge could determine that it was not necessary to refer the matter to the Bureau and decide the matter himself; however, if the party seeking disqualification challenged the Presiding Judge’s decision, it did become “necessary” to refer the matter to the Bureau within the language of Rule 15(B) of the Rules. Therefore, while there was no interlocutory appeal from decisions of either the Presiding Judge or the Bureau, there was in effect a second level of review by the Bureau in the case of the Presiding Judge deciding the matter alone.[1] In circumstances where an application for disqualification was referred to the Bureau, it would undertake a de novo review.[2]

8. The procedure in the current version of Rule 15(B) of the Rules differs in that it is the President, rather than the Presiding Judge, who either makes the decision on his own or refers it on for decision. Further, in the latter case, the President refers it not to the Bureau but to a panel of three judges drawn from other Chambers. However, beyond these differences, the language and general procedure of Rule 15(B) of the Rules in the two versions is broadly similar. Both provide that the matter may be decided by a lone judge (be it the Presiding Judge or the President) or “if necessary” by a panel of judges (be it a panel of three judges from other Chambers or the Bureau). Therefore, the Appeals Chamber considers that the reasoning in Galić to the extent that where a decision of the Presiding Judge acting on his own is challenged it becomes “necessary” to refer the matter to the Bureau, would equally apply to the new procedure under Rule 15(B) of the Rules. Therefore, under the current Rule 15(B) of the Rules, where the President (or, as in the instant case, the Vice-President) has determined that it is not necessary to refer the matter to a panel of judges and decided the matter himself, and that decision is challenged, it becomes “necessary” to refer the matter to a panel of three judges.

 

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003 (“Galić Appeal Decision”), para. 8. Note that while there was no interlocutory appeal from a decision pursuant to Rule 15(B) of the Rules, the matter can be raised in an appeal against conviction, see ibid.; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 31.

[2] Galić Appeal Judgement, para. 31.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision on Chambers Consultant or Legal Officer - 17.12.2009 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR73.8)

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. […]

 

[1] First Impugned Decision [Decision on the Objections of the Mugiraneza and Bicamumpaka Defence Teams to the Engagement of Mr. Everard O’Donnell as a Chambers Consultant, 28 August 2009], para. 13.

[2] First Impugned Decision, para. 13.

[3] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, Public Redacted Version, (“Hartmann Report”), 27 March 2009.

[4] First Impugned Decision, para. 12, citing Hartmann Report, para. 25. The Appeals Chamber notes that the correct citation is Hartmann Report, para. 54. See contra Prosecutor v. Ieng Sary, Case No. 002/08-07-2009-ECCC-PTC, Decision on the Charged Person’s Application for Disqualification of Drs. Stephen Heder and David Boyle, 22 September 2009, para. 15 (wherein the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia relied on paragraph 54 of the Hartmann Report to find that “decisions of international tribunals related to court officers indicate that their lack of impartiality may bring cause for the disqualification of the judge with whom they are associated, not of the officer him or herself. Disqualification of a judge in these circumstances may be possible when the ‘objective test for bias’ is met by the applicant” (emphasis added).

[5] First Impugned Decision, para. 14.

[6] See, e.g., Articles 8(3)(B) and 51(3) of the Directive for the Registry of the International Criminal Tribunal for Rwanda Judicial and Legal Services Division Court Management Section, 14 March 2008 (“Directive for the Registry”).

[7] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, para. 196 (“Furundžija Appeal Judgement”).

[8] Furundžija Appeal Judgement, para. 197.

[9] Furundžija Appeal Judgement, para. 197.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision - 08.04.2003 BLAGOJEVIĆ et al.
(IT-02-60-AR73, IT-02-60-AR73.2, IT-02-60-AR73.3)

29.     […] [T]o be exposed to materials yet to be presented in evidence does not necessarily lead to pre-judgement or partiality.   The professionalism of the judges of the Trial Chamber is a guarantee that the presumption of innocence will be respected. […]

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Notion(s) Filing Case
Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

10. Rule 15(B) of the Rules prescribes a two-stage process for making a request to disqualify a Judge which consists of (i) an application to the Presiding Judge of the Trial Chamber seized with the proceedings, and (ii) a de novo determination by the Bureau.[1] The Appeals Chamber’s consideration of matters relating to disqualification is limited to an appeal on the merits of the case or, as here, where the issue properly arises in an interlocutory appeal certified by the Trial Chamber.[2]

[1] The Prosecutor v. Athanase Seromba, ICTR-01-66-AR, Decision on Interlocutory Appeal of a Bureau Decision, 22 May 2006, para. 5 (“Seromba Appeal Decision”).

[2] Seromba Appeal Decision, para. 4.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

11. Mr. Nzirorera has not filed a request to disqualify Judge Byron in accordance with Rule 15(B) of the Rules. Rather, he sought disclosure of material directly from the concerned Trial Chamber in order to assess the merits of making such a claim.[1] While the Statute and Rules do not explicitly provide for the disclosure of material from a Judge in connection with a request for disqualification, they also do not prevent a party from requesting disclosure of information in this regard. The Appeals Chamber recalls that a presumption of impartiality, which cannot be easily rebutted, attaches to the Judges of the Tribunal.[2] Bearing this in mind, a request for disclosure must specifically identify the material or information in the possession of the Judge and make a prima facie showing that it would demonstrate actual bias or the appearance of bias.

[1] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion for Disclosure of Letter of Recommendation, 11 February 2009], para. 3.

[2] Nahimana et al. Appeal Judgement, para. 48.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

583. [T]here is no reference to any defence of diminished mental responsibility in the Tribunal’s Statute.  The description of diminished mental responsibility as a “special defence” in Rule 67(A)(ii) is insufficient to constitute it as such.  The rule-making powers of the judges are defined by Article 15 of the Tribunal’s Statute, which gives power to the judges to adopt only –

[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.[1]

The Appeals Chamber has held that this power does not permit rules to be adopted which constitute new offences, but only rules of procedure and evidence for the conduct of matters falling within the jurisdiction of the Tribunal.[2]  It follows that there is, therefore, no power to adopt rules which constitute new defences.  If there is a “special defence” of diminished responsibility known to international law, it must be found in the usual sources of international law – in this case, in the absence of reference to such a defence in established customary or conventional law, in the general principles of law recognised by all nations.[3]

 

[1]    The emphasis has been added.

[2]    Prosecutor v Tadić, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, para 24.

[3]    [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704, 3 May 1993 (“Secretary-General’s Report”)], para 58.

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ICTR Statute Article 14 ICTY Statute Article 15
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

655. The qualifications for judges of the Tribunal are stated in Article 13 of the Tribunal’s Statute: 

Article 13

Qualifications and election of judges

The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices.  In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.[1]

This provision is not stated in terms of qualification for election as judges, but rather in terms of continuous application (“The judges shall be […]”).  If, for example, a judge of the Tribunal were to be found guilty of some offence committed during his or her term of office which demonstrated a lack of high moral character or integrity, it could hardly be suggested that such a judge remained qualified within the terms of Article 13 simply because he or she was qualified at the time of election.  The Appeals Chamber accepts that a judge must remain qualified within the meaning of Article 13 throughout his or her term of office.

[…]

659. In the opinion of the Appeals Chamber, any interpretation of Article 13 must take into account the restriction imposed by Article 12 of the Statute, that no two judges may be nationals of the same State.  The Statute envisages that judges from a wide variety of legal systems would be elected to the Tribunal, and that the qualifications for appointment to the highest judicial offices in those systems would similarly be widely varied.  The intention of Article 13 must therefore be to ensure, so far as possible, that the essential qualifications do not differ from judge to judge.  Those essential qualifications are character (encompassing impartiality and integrity), legal qualifications (as required for appointment to the highest judicial office) and experience (in criminal law, international law, including international humanitarian law and human rights law).  Article 13 was not intended to include every local qualification for the highest judicial office such as nationality by birth or religion, or disqualification for such high judicial office such as age.  Nor was Article 13 intended to include constitutional disqualifications peculiar to any particular country for reasons unrelated to those essential qualifications.

[1]    This was the form of Article 13(1) of the Statute at the relevant time.  It has since been amended by Security Council Resolution 1329, 30 Nov 2000, so that the opening sentence commences:  “The permanent and ad litem judges shall be persons of high moral character […]”.

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ICTR Statute Article 12 ICTY Statute Article 13
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research.  Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems.  The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy.[1]  The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.[2]

626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep.[3]  […]

[…]

630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party.[4]  In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted[5] – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed.  However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing.[6]  If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way.  The complaining party must prove the relevant prejudice by clear evidence.[7]  Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.[8]

631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put.[9]  Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings.[10]  The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established.  Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.[11]

632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense.  It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given.  It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.[12]

633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist.  Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges.  Rule 15bis(A) states: 

If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.

Although this rule was not in force at the time of the Čelebići trial proceedings,[13] the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.

[…]

637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial,[14] with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]

638. […] The Appeals Chamber does not accept that this was the correct approach.  In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite

[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive.  The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].[15]

See also paragraphs 640-649.

 

[1]    Cases relating to jurors alleged to have been asleep during a trial are included in the present consideration.

[2]    [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A (“Čelebići Case”), Supplemental Brief of the Appellant, Esad Landžo, in Support of the Fourth Ground of Appeal (Sleeping Judge), 7 December 1999], pp 7-8; [Čelebići Case, Respondent’s Brief of the Prosecution in Relation to Esad Landžo’s Fourth Ground of Appeal, 28 Jan 2000], para 3.3.

[3]    R v Caley [1997] WCBJ 1714 (British Columbia Supreme Court), at para 25 (to grant relief on the basis of the inattention of the judge there must be “clear and overwhelming evidence”); Sanborn v Commonwealth 975 SW 2d 905 (1998), at 911 (Supreme Court of Kentucky); Commonwealth v Keaton, 36 Mass App Ct 81 (1994), at 87; Bundesgerichtshof, Vol 11, p 74, Judgement of 22 November 1957 (German Federal Supreme Court of Justice); Bundesverwaltungsgericht, Judgement of Supreme Administrative Court, 24 Jan 1986 at para 12; [1986] Neue Juristiche Wochenschrift 2721, at 2721; Illinois v McCraven 97 Ill App 3d 1075 (1981) (Appellate Court of Illinois), at 1076; People v Thurmond 175 Cal App 3d 865 (1985) (Court of Appeal, 2d District), at 874; Commonwealth Bank of Australia v Falzon [1998] VSCA 79, para 10 (Supreme Court of Victoria, Court of Appeal).

[4]    R v Moringiello [1997] Crim LR 902; R v Edworthy [1961] Crim LR 325; R v Tancred 14 April 1997, Court of Appeal (Criminal Division); Kozlowski v City of Chicago 13 Ill App 513 (the fact that a juror fell asleep during proceedings, absent an affirmative showing of prejudice to the complainant, is not a ground for a new trial); State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio) (must be a showing of “material prejudice”).

[5]    See, in Germany, the Strafprozeßordnung, which provides by Article 338 (1) that an absolute ground for revision of a judgement is that the trial court was not constituted as provided.  Article 338 (1) may be violated where a judge or lay assessor is asleep or otherwise “absent”.

[6]    Bundesverwaltungsgericht (Supreme Administrative Court) Judgement of 24 January 1986, [1986] Neue Juristiche Wochenschrift 2721, at 2721; Bundesgerichtshof (Federal Supreme Court of Justice) Vol 2, p 14, Judgement of 23 November 1951.

[7]    State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio); United States of America v White and Keno 589 F 2d 1283 (1979) (Court of Appeals, 5th Circuit), at 1289.

[8]    Ferman v Estwing Manufacturing Company, 31 Ill App 3d 229, at 233.

[9]    See, e.g., Espinoza v The State of Texas, Tex App Lexis 5343, Judgement of 21 July 1999.

[10]   Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106 (Queensland Court of Appeal), at 113.

[11]   The Chicago City Railway Company v John Anderson 193 Ill 9 (1901), at 13.

[12]   Bundesgerichtshof (Federal Supreme Court of Justice) Vol 11 p 74, 22 November 1957, at 77:  “There are numerous matters of behaviour and other circumstances by which a judge may give the impression to participants, especially to a defendant who is a layman in law, that he did not pay attention to a part of the events of the proceedings.  Such an impression can even be made by actions to which the judge is legally obliged [sic]”.

[13]   It was adopted at the Twenty-first Plenary Session, 15-17 Nov 1999, (Revision 17 of the Rules) and entered into force on 7 Dec 1999.  The words “or for reasons of authorised Tribunal business” were inserted by Revision 19 of the Rules, with effect from 19 Jan 2001.

[14]   Appeal Transcript, p 692.

[15]   Kraska v Switzerland, Case No 90/1991/342/415, Judgement of 19 April 1993, para 32.

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Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

49. Rule 15bis(D) of the Rules explicitly prescribes that the “remaining Judges” may decide to continue the proceedings. The Appeals Chamber noted this in the Butare case: “The new Rule 15bis(D) gives judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge.”[1] The fact that the remaining Judges have ad litem rather than permanent status does not change anything under Rule 15bis(D). Article 12quater of the Statute unequivocally provides that ad litem Judges enjoy the same powers as the permanent Judges of the Tribunal, except in expressly delimited circumstances which do not include the power to decide to continue the proceedings under Rule 15bis(D).[2] Accordingly, on 21 June 2004, the Appeals Chamber directed the remaining Judges in the case to re-consider their decision to continue the proceedings with a substitute Judge after giving the parties an opportunity to be heard and taking account of their submissions.[3]

50. The Appeals Chamber finds that the remaining Judges were competent to render the Impugned Decision. […]

[1] Butare Appeal Decision [Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis (D), 24 September 2003], para. 11 (emphasis added).

[2] Article 12quater of the Statute provides in relevant parts:

1. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall:

(b) Enjoy, subject to paragraph 2 below, the same powers as the permanent judges of the International Tribunal for Rwanda;

2. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall not:

(b) Have power:

(i) To adopt rules of procedure and evidence pursuant to article 14 of the present Statute. They shall, however, be consulted before the adoption of those rules;

(ii) To review an indictment pursuant to article 18 of the present Statute;

(iii) To consult with the President of the International Tribunal for Rwanda in relation to the assignment of judges pursuant to article 13 of the present Statute or in relation to a pardon or commutation of sentence pursuant to article 27 of the present Statute;

(iv) To adjudicate in pre-trial proceedings.

See also Karemera and Nzirorera v. Prosecutor, Case No. ICTR-98-44-AR73.4, Decision on Interlocutory Appeals regarding Participation of Ad Litem Judges, 11 June 2004, p. 3 (“[P]ursuant to Article 12 quater of the Statute of the International Tribunal, ad litem judges enjoy the same powers as the permanent judges of the International Tribunal, with the exception of the right to review an indictment, the right to adjudicate in pre-trial proceedings and other administrative matters specifically enumerated in paragraph 2 of Article 12 quater of the Statute of the International Tribunal.”).

[3] Decision in the Matter of Proceedings under Rule 15bis(D) [21 June 2004], para. 13.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

52. … In the circumstances to which Rule 15bis(D) is addressed, it is not for a party to move the court, rather, the Rule allows the remaining Judges to take the initiative and act in their discretion, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. The parties have a right to be heard before the decision is made, but they bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

58. In the view of the Appeals Chamber, the remaining Judges erred in considering that the substitute Judge should evaluate the “compatibility” of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings.[1] This observation is incorrect because, under the Rules, the substitute Judge is not called upon to evaluate whether, in the circumstances, the lack of video-recordings is incompatible with the requirements of a fair trial. Rather, the substitute Judge is to “familiarise” himself or herself with “the record” of the proceedings, whatever that record may contain.[2] In any event, this is done after the remaining Judges decide to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial. Moreover, even if the substitute Judge would decide that fair trial demands that he or she observe the protected witnesses during their testimony, the substitute Judge alone could not ensure their recall.[3]

[1] Impugned Decision, para. 104.

[2] See Rule 15bis(D). As Judge Hunt pointed out in his Butare dissent, Rule 15bis(D) “does not give to the substituted Judge either the power or the obligation to determine the adequacy of the record of proceedings.” Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.

[3] See Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

At paras 42-43, the Appeals Chamber held:

42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated:

[t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1]

43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2]

[1] Butare Decision, para. 25.

[2] Impugned Decision, para. 69.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

The Appeals Chamber held in paragraph 19 of the decision that:

19. Rules 15bis (D) of the Rules confers on the remaining Judges the discretion to determine whether to continue the trial proceedings with a substitute Judge. In exercising this discretion, the remaining Judges have “the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered”.[1] The Appeals Chamber has previously stated that it can only intervene in this decision-making process in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the remaining Judges failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected.[2] It is not enough to show that the Appeals Chamber would have exercised the discretion differently.[3]

[1] The Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambaje, Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis (D), 24 September 2003 (“Butare Decision”), para. 23.

[2] Butare Decision, para. 23.

[3] Butare Decision, para. 23.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Rule 15bis(F) Decision - 31.05.2007 KAREMERA et al.
(ICTR-98-44-AR73.9)

Rule 15bis envisages situations where a Judge is unable to sit on a case. Rule 15bis(F), more specifically, reads:

In case of illness or an unfilled vacancy or in any other similar circumstances, the President may, if satisfied that it is in the interests of justice to do so, authorise a Chamber to conduct routine matters, such as the delivery of decisions, in the absence of one or more of its members.

The Appeals Chamber in the present case found:

10. […] The Appeals Chamber considers that routine matters, within the meaning of Rule 15bis (F) of the Rules, are generally matters of a regular and standardised nature, such as the convening of a status conference to organise exchanges between the parties, pursuant to Rule 65bis of the Rules. Other matters, both of a substantive and procedural nature, are generally non-routine, for the purposes of Rule 15bis (F) of the Rules.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

377. In Nahimana et al., the Appeals Chamber recalled that

[t]he right of an accused to be tried before an independent tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute. […] [T]he independence of the Judges of the Tribunal is guaranteed by the standards for their selection, the method of their appointment, their conditions of service and the immunity they enjoy. The Appeals Chamber further notes that the independence of the Tribunal as a judicial organ was affirmed by the Secretary-General at the time when the Tribunal was created, and the Chamber reaffirms that this institutional independence means that the Tribunal is entirely independent of the organs of the United Nations and of any State or group of States. Accordingly, the Appeals Chamber considers that there is a strong presumption that the Judges of the Tribunal take their decisions in full independence, and it is for the Appellant to rebut this presumption.[1]

378. The Appeals Chamber notes that Judges of this Tribunal are sometimes involved in trials which, by their very nature, cover overlapping issues.[2] In this regard, the Appeals Chamber previously held that

[i]t is assumed, in the absence of evidence to the contrary, that, by virtue of their training and experience, the Judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case. The Appeals Chamber agrees with the ICTY Bureau that “a judge is not disqualified from hearing two or more criminal trials arising out of the same series of events, where he is exposed to evidence relating to these events in both cases”.[3]

Accordingly, the fact that the Trial Judges heard the Renzaho case while, at the same time, they participated in deliberations on the Appellant’s case does not in itself demonstrate an appearance of bias on the part of the Trial Judges.

[1] Nahimana et al. Appeal Judgement, para. 28 (citations omitted).

[2] Nahimana et al. Appeal Judgement, para. 78.

[3] Nahimana et al. Appeal Judgement, para. 78 (citations omitted). 

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

47. The right of an accused to be tried before an impartial tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] Furthermore, Article 12 of the Statute cites impartiality as one of the essential qualities of any Tribunal Judge, while Rule 14(A) of the Rules provides that, before taking up his duties, each Judge shall make a solemn declaration that he will perform his duties and exercise his powers “impartially and conscientiously”. The requirement of impartiality is again recalled in Rule 15(A) of the Rules, which provides that “[a] judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality”.

48. The Appeals Chamber reiterates that there is a presumption of impartiality which attaches to any Judge of the Tribunal and which cannot be easily rebutted.[2] In the absence of evidence to the contrary, it must be assumed that the Judges “can disabuse their minds of any irrelevant personal beliefs or predispositions”.[3] Therefore, it is for the appellant doubting the impartiality of a Judge to adduce reliable and sufficient evidence to the Appeals Chamber to rebut this presumption of impartiality.[4]  [See also para. 183 of the Appeal Judgement]

49. In the Akayesu Appeal Judgement, the Appeals Chamber recalled the criteria set out by the ICTY Appeals Chamber regarding the obligation of impartiality incumbent upon a Judge:

That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or

(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[5]

50. The test of the reasonable observer, properly informed, refers to “an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality, apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.[6] The Appeals Chamber must therefore determine whether such a hypothetical fair-minded observer, acting in good faith, would accept that a Judge might not bring an impartial and unprejudiced mind to the issues arising in the case.[7]

78. The Appeals Chamber recalls that the Judges of this Tribunal and those of the ICTY are sometimes involved in several trials which, by their very nature, cover issues that overlap. It is assumed, in the absence of evidence to the contrary, that, by virtue of their training and experience, the Judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.[8] The Appeals Chamber agrees with the ICTY Bureau that “a judge is not disqualified from hearing two or more criminal trials arising out of the same series of events, where he is exposed to evidence relating to these events in both cases”.[9] [See also para. 84 et seq. of the Appeal Judgement]

See also Hadžihasanović Appeal Judgement, para. 78.

[1] Galić Appeal Judgement, para. 37; Rutaganda Appeal Judgement, para. 39; Kayishema and Ruzindana Appeal Judgement, paras. 51 and 55; Furundžija Appeal Judgement, para. 177.

[2] Galić Appeal Judgement, para. 41; Kayishema and Ruzindana Appeal Judgement, para. 55; Akayesu Appeal Judgement, para. 91; Čelebići Appeal Judgement, para. 707; Furundžija Appeal Judgement, paras. 196-197.

[3] Furundžija Appeal Judgement, para. 197.

[4] Semanza Appeal Judgement, para. 13; Niyitegeka Appeal Judgement, para. 45; Akayesu Appeal Judgement, para. 91; Čelebići Appeal Judgement, para. 707; Furundžija Appeal Judgement, para. 197.

[5] Akayesu Appeal Judgement, para. 203, citing Furundžija Appeal Judgement, para. 189. See also Galić Appeal Judgement, paras. 38-39; Rutaganda Appeal Judgement, para. 39; Čelebići Appeal Judgement, para. 682.

[6] Furundžija Appeal Judgement, para. 190. See also Galić Appeal Judgement para. 40; Rutaganda Appeal Judgement, para. 40; Kayishema and Ruzindana Appeal Judgement, para. 55; Čelebići Appeal Judgement, para. 683.

[7] Rutaganda Appeal Judgement, para. 41; Čelebići Appeal Judgement, para. 683.

[8] Akayesu Appeal Judgement, para. 269.

[9] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-PT, Decision of the Bureau, 4 May 1998, p. 2. 

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

72. The Appeals Chamber recalls that Rule 15(B) of the Rules of 26 June 2000 provided:

Any party may apply to the Presiding Judge of a Chamber for the disqualification of a Judge of that Chamber from a case upon the above grounds. After the Presiding Judge has conferred with the Judge in question, the Bureau, if necessary, shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.[1] 

This provision does not specify under what circumstances the question of recusal of a Judge is to be referred to the Bureau. The Appeals Chamber takes the view that the need to do so may arise under various circumstances.

73. First, the Appeals Chamber would point out that, under the principle that the same person cannot be both judge and party, the President of the Chamber cannot rule on a request for recusal if he or she is directly affected by such request.[2] However, Judge Pillay was in the position of both judge and party, as she had to rule on her own recusal following the submission of Appellant Barayagwiza’s request. Faced with such a situation, she should have referred the issue to the Bureau.

74. Secondly, the Appeals Chamber recalls that it is necessary to refer the issue to the Bureau if, after consultation with the judge concerned, the President of the Chamber finds that it is not necessary to recuse that judge, but that decision is challenged.[3] Therefore, since Judge Pillay’s decision to reject the request for recusal of Judge Møse was challenged by Barayagwiza (as evidenced by his Appeal of 18 September 2000), the issue should have been referred to the Bureau.

75. However, […] [h]aving found that the impartiality of Judges Pillay and Møse could not be impugned by reason of their visit to Rwanda, the Appeals Chamber considers that the procedural irregularities committed by the Trial Chamber in ruling on the motion for disqualification of Judges Pillay and Møse were not, in themselves, sufficient to create in the mind of a reasonable observer, properly informed, an appearance of bias, or to rebut the presumption of impartiality of those Judges. The appeal on this point is accordingly dismissed.

[1] Regarding the procedure to be followed, this Rule has not been amended since.

[2] With respect to this issue, the ICTY Bureau decided in 1998 to rule in the absence of the Judge whose withdrawal had been requested. Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-PT, Decision of the Bureau, 4 May 1998, p. 1. The ICTY Appeals Chamber also affirmed in Galić that the Judge whose disqualification is sought is to have no part in the process by which the application for that disqualification is dealt with: Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR54, Appeals Chamber Decision on the appeal lodged against the dismissal of the request for the withdrawal of a Judge, 13 March 2003, para. 8. See also Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-60, Decision of the Bureau on the request by Blagojević in application of Rule 15(B) of the Rules, 19 March 2003, para. 1.

[3] Galić Appeal Judgement, paras. 30-31; The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-AR, Decision on the Interlocutory Appeal against the Decision of the Bureau of 22 May 2006, para. 5 (“Rule 15(B) provides for a specific two-stage consideration of motions for disqualification of a judge. As clearly indicated in the said Rule, the request for disqualification of a judge is sent to the Presiding Judge of the Chamber […]. The Presiding Judge of the Chamber will then confer with the Judge in question. If the party challenges the decision of the Presiding Judge, the Bureau will rule on the issue after a de novo examination.”) 

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Decision on Motions to Annul and Reconsider - 27.09.2011 NAHIMANA et al. (Media case)
(ICTR-99-52B-R)

NOTING Mr. Nahimana’s submission that the Decisions of 22 April 2008 and 30 June 2010 should be annulled because they are signed exclusively by Judge Pocar and thus do not evince that the remainder of the Bench participated in the deliberations;

CONSIDERING that, in accordance with the consistent practice of the Appeals Chamber, the Presiding Judge signs decisions on behalf of the Bench after the conclusion of deliberations on a motion;

FINDING, therefore, that Mr. Nahimana’s argument that the Decisions of 22 April 2008 and 30 June 2010 be annulled on the basis that they were signed exclusively by the Presiding Judge lacks merit;

[1] Motion [Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Demande d’annulation des décisions portant la seule signature du juge Fausto Pocar prises dans mon affaire après l’arrêt du 28 [n]ovembre 2007 ; Demande de réexamen de ma “Notice of application for reconsideration of Appeal Decision due to factual errors apparent on the record” du 27 [m]ars 2008 et dans le cas échéant, de ma requête du 27 [a]vril 2010, 13 September 2011], paras. 7-10.

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

115. The Appeals Chamber is not convinced that the Trial Chamber’s assessment of the evidence is unreasonable or shows bias. A presumption of impartiality attaches to any Judge of the Tribunal.[1] The Presiding Judge’s question to Witness Nahimana reveals nothing more than her attempt to understand why the witness was better placed to know what transpired at the parish on 30 April 1994 than the two individuals whom he was visiting.[2]

[1] See, e.g., Renzaho Appeal Judgement, para. 21; Nahimana et al. Appeal Judgement, para. 48; Rutaganda Appeal Judgement, para. 42.

[2] See T. 2 September 2009 p. 20 (“MADAM PRESIDENT: Can you tell the Court why you think number 2, who is now a priest like yourself, and number 3, another priest – he has been a priest for all these years – would come to these Chambers and tell us that Munyakazi was present on that day and led the attack, since they were living there at the time? Why would they come and tell us that that is what happened, since you are saying that it did not happen because you were a visitor there? THE WITNESS: I do not know if I'm able to answer that question and I wouldn't know what it is they told you. They probably told you things the way they saw it. And I'm telling you things the way I saw it. I wouldn't know the reasons for which they told you what they told you. But I was present on the 30th, and I'm telling you things the way I saw them. MADAM PRESIDENT: You were a mere visitor, who left and went back, and they were living there at the time.”).

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber held that Rule 15bis(D) only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the newly composed Trial Chamber to resume proceedings.

127. Rule 15 bis(D) of the Rules provides that if an accused withholds his consent to the continuation of the proceedings with a substitute Judge pursuant to Rule 15 bis(C) of the Rules, the remaining Judges may nonetheless decide to continue the proceedings with a substitute Judge if this would serve the interests of justice. It further specifies: […]

128. The Appeals Chamber agrees with Amicus Curiae that the appeal provided for under Rule 15 bis(D) of the Rules only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the substitute Judge and/or the newly composed Trial Chamber to resume proceedings. The Trial Chamber, by continuing with the case with the substitute Judge, impliedly acquiesced in the certification that Judge Hanoteau was familiar with the case to the requisite degree. Amicus Curiae fails to bring forward any evidence that Judge Hanoteau had not sufficiently familiarised himself with the case to be able to properly discharge his functions. Consequently, Amicus Curiae does not demonstrate that the Trial Chamber abused its discretion in continuing the trial after receipt of the certificate of Judge Hanoteau and thus rendered the trial unfair. This sub-ground is dismissed. 

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

133. The Appeals Chamber recalls that before taking up duties, every Judge of the Tribunal solemnly declares that he will perform his or her duties and exercise his or her powers honourably, faithfully, impartially and conscientiously.[1] There is a strong presumption that the Judges act in accordance with this oath.[2] A party must adduce sufficient evidence to rebut this presumption.[3] The Appeals Chamber is not convinced that Amicus Curiae has done so here.

134. Just as general observations on the length of the Trial Judgement, or of particular parts of the Trial Judgement, usually do not suffice to show an error of law because of a lack of reasoned opinion,[4] general comments on the length of the deliberations are insufficient to show improprieties in the deliberative process. Here, Amicus Curiae claims that it was impossible to deliberate properly on such a complex case in only 18 working days, but he brings no evidence to substantiate this claim. In particular, he fails to show that conclusions were reached by other persons than the Judges or that preparatory work overreached into the area of deliberation. In this connection, the Appeals Chamber considers that in cases of the size and complexity of the case at stake, given that as a matter of fairness judgements must be issued in a reasonable time, preparatory work can and should be done as the case goes. This is not to suggest that decisions should be taken by others than the Judges or that any improper decisions should be taken by the Judges in advance of hearing all the evidence. However, there are numerous steps than can and should be taken which will place the Bench in the best situation possible following closing arguments to prepare a reasoned, clear and concise judgement within a reasonable time frame. Against this background, the Appeals Chamber cannot infer that the deliberation process was corrupted. This sub-ground is dismissed.

[1] Rule 14 of the Rules.

[2] Furundžija Appeal Judgement, para. 197.

[3] Ibid.

[4] Kvoèka et al. Appeal Judgement, para. 25.

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Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo
(IT-00-39-AR73.2)

18.     Furthermore, the statutory limitation on the cumulative period of service of ad litem judges under Article 13bis(2) [sic: 13ter(2)] should be interpreted in light of its object, purpose, context and practical policy considerations, or raison d’être of the provision in question.[1] In this regard, the Appeals Chamber agrees with the Prosecution that “the choice of a three-year cumulative service limit appears to have been primarily motivated by budgetary considerations, and not by any issues concerning the fair trial of an accused”.[2] Further, even at the time of establishment of the mechanism providing for the institution of ad litem judges, it was considered logically conceivable that extensions of service might be necessary where a trial would last longer than three years.[3] It is obvious that, in these circumstances, preventing Judge Canivell from sitting in the Krajišnik case until the end of the trial would in fact be detrimental to the right of the Accused[4] to be tried without undue delay under Article 21 of the Statute, this being the expression of the fundamental right enshrined in Article 14(3)(c) of the International Covenant on Civil and Political Rights of 1966.[5]

25.     […] Allowing Judge Canivell to sit until the end of the present case has been done out of a legitimate concern in this trial to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process.[6]

[1] Cf. Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 12; Tadić Decision [The Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], para. 88; See also Archbold, International criminal Courts (Practice, Procedure, Evidence), 2005, paras 5-22 through 5-41.

[2] Response, paras 29-31.

[3] Report of the Advisory Committee on Administrative and Budgetary Questions to the General Assembly, “Conditions of Service for the ad litem Judges of the International Tribunal for the Former Yugoslavia”, A/55/806, 23 February 2001, para. 14.

[4] And importantly, of other accused awaiting trial in the UN Detention Unit in The Hague.

[5] Article 14(3) of the ICCPR: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […] (c) To be tried without undue delay […]”.

[6] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defense Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006, p. 4; See supra, para. 25 [reproduced above].

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ICTR Statute Article 12 ter(2) ICTY Statute Article 13 ter(2)
Notion(s) Filing Case
Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo
(IT-00-39-AR73.2)

24.     Rule 15bis procedures are also inapplicable to the present circumstances, since they only apply when a Judge is unable to continue sitting in a part-heard case. In the present case and as explained above,[1] Judge Canivell has been explicitly and lawfully authorized to continue sitting in the case until the end of the trial. Consequently, the Appellant’s argument that he had a “legitimate expectation that Rule 15bis would be followed” and that the “Trial Chamber erred in neglecting to consider this fundamental principle of legal certainty”[2] is without merit.

[1] See supra, paras 4-6 [not reproduced here] and 16-19 [reproduced in this summary, except para. 19, which simply states the conclusion].

[2] Reply, paras 7-12.

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ICTR Rule Rule 15bis ICTY Rule Rule 15bis
Notion(s) Filing Case
Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

177. The fundamental human right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.  Article 13(1) of the Statute reflects this, by expressly providing that Judges of the International Tribunal “shall be persons of high moral character, impartiality and integrity”.[1]  This fundamental human right is similarly reflected in Article 21 of the Statute, dealing generally with the rights of the accused and the right to a fair trial.[2]  As a result, the Appeals Chamber need look no further than Article 13(1) of the Statute for the source of that requirement.  

Having consulted Article 6 of the European Convention of Human Rights and examined the interpretation by the European Court of Human Rights and national legal systems of the requirement of impartiality [for detailed analysis, see paras. 181-188], the Appeals Chamber proceeded to analyse how this requirement of impartiality should be interpreted and applied by the Appeals Chamber:

189. […] the Appeals Chamber finds that there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias.  On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A.  A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties.  Under these circumstances, a Judge’s disqualification from the case is automatic; or

ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]

190.    In terms of the second branch of the second principle, the Appeals Chamber adopts the approach that the “reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”[4]

191. The Appeals Chamber notes that Rule 15(A) of the Rules provides:

A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality.  The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case. [5]

The Appeals Chamber is of the view that Rule 15(A) of the Rules falls to be interpreted in accordance with the preceding principles.  

The Appeals Chamber also considered

196. In the view of the Appeals Chamber, there is a presumption of impartiality which attaches to a Judge. This presumption has been recognised in the jurisprudence of the International Tribunal,[6] and has also been recognised in municipal law. […]

197. […] [I]n 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.”  It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that Judge Mumba was not impartial in [the Appellant’s] case. There is a high threshold to reach in order to rebut the presumption of impartiality. As has been stated, “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established.’”[7]

The Appeals Chamber further concluded:

205.    The Appeals Chamber does not consider that a Judge should be disqualified because of qualifications he or she possesses which, by their very nature, play an integral role in satisfying the eligibility requirements.  The possession of [experience in international law, including human rights law,] is a statutory requirement for Judges to be elected to this Tribunal.  It would be an odd result if the operation of an eligibility requirement were to lead to an inference of bias.  Therefore, Article 13(1) should be read to exclude from the category of matters or activities which could indicate bias, experience in the specific areas identified.  In other words, the possession of experience in any of those areas by a Judge cannot, in the absence of the clearest contrary evidence, constitute evidence of bias or partiality.[8]

[1] (Emphasis added). Article 13(1) provides: “The Judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.” [NOTE: PURSUANT TO AMENDMENTS INTRODUCED BY UN SECURITY COUNCIL RESOLUTION 1329 (2000), ARTICLE 13 OF THE ICTY STATUTE NOW PROVIDES: “The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.”] See also Arts. 2 and 11 of Statute of the International Tribunal for the Law of the Sea (Annex VI of United Nations Convention on the Law of the Sea of 10 December 1982); Art. 19 of Statute of the Inter-American Court of Human Rights (adopted by Resolution 448 by the General Assembly of the Organisation of American States at its ninth regular session held in La Paz, Bolivia, October 1979); Arts. 36(3)(a), 40 and 41 of the Rome Statute [Rome Statute of the International Criminal Court, adopted at Rome on 17 July 1998, U.N. Doc. A/CONF. 183/9].

[2] Under Article 21(2) of the Statute, the accused is entitled to “a fair and public hearing” in the determination of the charges against him.  Paragraph 106 of the Report of the Secretary General provides that “[i]t is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings.  In the view of the Secretary-General, such internationally recognised standards are, in particular, contained in Article 14 of the International Covenant on Civil and Political Rights.” (Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808(1993)). Article 14(1) of the ICCPR provides in relevant part: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The fundamental human right of an accused to be tried before an independent and impartial tribunal is also recognised in other major human rights treaties. The Universal Declaration of Human Rights provides in Art. 10 that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the full determination of his rights and obligations of any criminal charge against him”. Art. 6(1) of the European Convention on Human Rights protects the right to a fair trial and provides inter alia that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Art. 8(1) of the American Convention provides that “[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law”. Art. 7(1)(d) of the African Charter on Human and Peoples’ Rights provides that every person shall have the right to have his case tried “within a reasonable time by an impartial court or tribunal.”

[3] In the Talić Decision [Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Application by Momir Talić for the Disqualification and Withdrawal of a Judge, 18 May 2000], it was found that the test on this prong is “whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgement) would be that [the Judge in question]… might not bring an impartial and unprejudiced mind” (para. 15).

[4] R.D.S. v. The Queen (1997) Can. Sup. Ct., delivered 27 September 1997.

[5] Rule 14 also provides that a Judge must make a solemn declaration before taking up  duties, in the following terms: “I solemnly declare that I will perform my duties and exercise my powers as a Judge of the International Tribunal…honourably, faithfully, impartially and conscientiously.”

[6] See e.g., Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-PT, Decision of the Bureau, 4 May 1998, p. 2.

[7] Mason J, in Re JRL; Ex parte CJL (1986) CLR 343 at 352. Adopted in the subsequent Australian High Court decision in Re Polities; Ex parte Hoyts Corporation Pty Ltd (1991) 65 ALJR 444 at 448.

[8] Such a statutory requirement for experience of this general nature is by no means novel to this Tribunal. See e.g., Art. 36 of the Rome Statute; Art. 34 of the American Convention; Art. 39(3) of the European Convention; Art. 2 of the Statute of the International Court of Justice.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision on Interlocutory Appeal - 26.02.2002 KRAJIŠNIK Momčilo
(IT-00-39&40-AR73.2)

9. [...] [R]equirement in Rule 28(B) that the duty Judge is to be “available at all times, including out of normal Registry hours, for dealing with applications pursuant to paragraphs (C) and (D)”. Rule 28 thus necessarily contemplates that the duty Judge will have power during normal Registry hours to deal with applications in cases which have already been assigned to a Trial Chamber. Rule 28(D) must be interpreted in a way which will correspond with what is clearly intended by Rule 28(B). It is therefore necessarily implicit in Rule 28(D) that the Judge will deal during normal Registry hours with applications which have already been assigned to a Trial Chamber. Rule 28(B) gives to the judge the discretion to refuse to do so where the application is not urgent. The exercise of that discretion will depend upon whether the application is of such a nature that it is appropriate that it be dealt with by the duty Judge rather than by the Trial Chamber to which the case has been assigned. This situation would usually arise during the official court recesses, but it would also arise where the Trial Chamber is, for reasons other than a court recess, not available to deal with the application.

10. The obvious example of where it would be appropriate – indeed, necessary – for the duty Judge to exercise the powers of the Trial Chamber (whether or not the relief sought should be granted) is where the application is an urgent one which cannot await for its resolution the return of the Trial Chamber to which the case is assigned. Another obvious example of where it would be at least appropriate for the duty Judge to exercise the power to deal with the application (again, whether or not the relief sought should be granted) is where it is an application pursuant to Rule 127 to enlarge the time prescribed by the Rules for the doing of an act, and where the time for doing that act expires during the unavailability of the Trial Chamber by reason of the court recess or other reason, or very shortly thereafter. In considering whether it is appropriate for the duty Judge to deal with any particular matter, it is important to keep in mind that the Trial Chamber will usually be in a better position to deal with a matter which requires detailed knowledge of the case.

[...]

14. Where a case has already been assigned to a Trial Chamber, urgency would usually be established where the subject matter of the application is of such a nature that the relief sought can only be granted if the application is determined at a time before that Trial Chamber is available to determine it, and where the applicant would suffer significant prejudice if the application is not determined within that time. The circumstances which could constitute urgency in any particular case cannot be precisely defined in advance. [...]

[...]

17. [...] Where an application is made in a case assigned to a Trial Chamber, but the Trial Chamber is not available to deal with it so that it comes before the duty Judge, and where that Judge correctly refuses to deal with that application because he or she has not been satisfied that it was urgent, the only ruling which should or could be made by that Judge is to refuse to deal with that application as the duty Judge. It would then be left to the Trial Chamber to deal with the application when the Trial Chamber is available to do so. This would appear to be so whether the application is addressed to the Trial Chamber or to the duty Judge directly. If the application is dismissed by the duty Judge, the Trial Chamber would necessarily be prevented from dealing with it in the ordinary course. That is not the intention of Rule 28.

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ICTY Rule Rule 28
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 HATEGEKIMANA Idelphonse
(ICTR-00-55B-A)

13. At a ceremony held at the Tribunal on 25 October 2010, the Tribunal named the winners of the “Essays and Drawings Competition”, which involved students from schools in five East African countries. Some of the drawings entered into this competition were then displayed at the Tribunal.[1] According to Hategekimana, one of the first prizes in the competition was awarded to a 12-year old girl from Butare Prefecture, whose drawing depicts a Judge from the Tribunal pointing his finger at an accused and saying the words: “You Hategekimana […] tell what you have done in genocide. You, Hategekimana you will go in prison 30 years”, while the accused is shown uttering the words: “I have killed 77 people”.[2] Hategekimana contends that this drawing, which was exhibited in the corridors of the Tribunal before the delivery of the Trial Judgement, could be admired by the Judges of the Trial Chamber and that a legal officer involved in the drafting of the Trial Judgement was part of the competition’s jury.[3] At the pronouncement of the Trial Judgement, Hategekimana complained about the exhibition of the drawing and the Trial Chamber ordered that it be placed under seal.[4]

16. Article 20(3) of the Statute guarantees that an accused person shall be presumed innocent until proven guilty. In addition, the Statute and Rules guarantee an accused’s right to be tried by impartial Judges.[5] Rule 15(A) of the Rules specifically provides that “[a] Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality.” In particular, a Judge must withdraw from a case if it is shown that actual bias exists or if the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[6] The Appeals Chamber has also emphasized that there is a presumption of impartiality which attaches to any judge of the Tribunal and which cannot be easily rebutted.[7] Accordingly, it is for the appealing party alleging bias to adduce reliable and sufficient evidence to rebut that presumption.[8] The Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality.[9]

17. The Appeals Chamber acknowledges that it was highly improper to have a drawing of such nature on display in the corridors of the Tribunal during an ongoing trial and that this should have been avoided. However, it considers that Hategekimana provides no support for his allegation that the Judges in his case saw the drawing containing the handwritten inscriptions or posed for a photograph in front of it. The Appeals Chamber observes that none of the Trial Chamber’s Judges features in the photographs referred to by Hategekimana.[10] In any event, even if the Trial Chamber’s Judges had viewed the drawing, this would not be sufficient to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of those Judges.

[1] Appeal Brief [Corrigendum au mémoire d’appel d’Ildephonse Hategekimana déposé le 30/05/11, 2 June 2011], Annex A (ICTR Newsletter, October 2010, pp. 1, 2; ICTR Newsletter, May-June 2010, p. 7; ICTR Newsletter, July-August 2010, p. 7; ICTR Newsletter, September 2010, pp. 1, 2).

[2] Appeal Brief, para. 9; Reply Brief [Mémoire en réplique de l’appelant Ildephonse Hategekimana, 27 July 2011], para. 36. See also Appeal Brief, Annex A; AT. 15 December 2011 p. 8.

[3] Notice of Appeal [Acte d’appel amendé du Lieutenant Ildephonse Hategekimana conformément à la décision intitulée «Order for the Filing of Ildephonse Hategekimana’s Proposed Amended Notice of Appeal rendue par le Juge de mise en état en appel le 23 mai 2011, 30 May 2011], para. 26; Appeal Brief, paras. 10, 11, 13.

[4] T. 6 December 2010 pp. 2, 3. See also AT. 15 December 2011 p. 4.

[5] Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.15, Decision on Joseph Nzirorera’s Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding Judge’s Written Assessment of a Member of the Prosecution Team, 5 May 2009 (“Karemera et al. Decision of 5 May 2009”), para. 9; Nahimana et al. Appeal Judgement, para. 47.

[6] Karemera et al. Decision of 5 May 2009, para. 9. See also Nahimana et al. Appeal Judgement, para. 49, citing Akayesu Appeal Judgement, para. 203 (“That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute: A. A Judge is not impartial if it is shown that actual bias exists. B. There is an unacceptable appearance of bias if: (i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”). See also Furundžija Appeal Judgement, para. 189.

[7] Renzaho Appeal Judgement, para. 21; Nahimana et al. Appeal Judgement, para. 48; Galić Appeal Judgement, para. 41; Akayesu Appeal Judgement, para. 91; Karemera et al. Decision of 5 May 2009, para. 11; Delalić et al. Appeal Judgement, para. 707; Furundžija Appeal Judgement, paras. 196, 197.

[8] Renzaho Appeal Judgement, para. 23; Karera Appeal Judgement, para. 254; Nahimana et al. Appeal Judgement, para. 48; Niyitegeka Appeal Judgement, para. 45. See also Rutaganda Appeal Judgement, para. 42; Furundžija Appeal Judgement, para. 197.

[9] Renzaho Appeal Judgement, para. 23; Rutaganda Appeal Judgement, para. 43; Ntagerura et al. Appeal Judgement, para. 135.

[10] Appeal Brief, Annex A (ICTR Newsletter, October 2010, pp. 2, 11).

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

466. Article 23(2) of the Statute and Rule 98 ter(C) of the Rules provide that a judgement shall be rendered by a “majority of the judges”. Rule 87(A) of the Rules specifies that a majority of judges must be satisfied that guilt has been proved beyond reasonable doubt. In the present case, there was no such majority as only Judge David was satisfied that Sredoje Lukić fulfilled the actus reus and mens rea of aiding and abetting extermination in the Pionirska Street Incident.[1] As set out above, for different reasons neither Judge Van den Wyngaert nor Judge Robinson was satisfied that Sredoje Lukić should be convicted of this offence. Thus, to conclude that the Trial Chamber’s majority findings on Sredoje Lukić’s participation in the murders and on their characterisation as extermination support a finding of guilt would lead to Sredoje Lukić’s conviction, despite the fact that only one Judge was satisfied that all the necessary elements were fulfilled. Such a conclusion is incompatible with the principle 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, as enshrined in Rule 87(A) of the Rules. Thus, the Prosecution has not shown that the Trial Chamber erred in failing to convict Sredoje Lukić for aiding and abetting extermination as a crime against humanity on Pionirska Street. The Prosecution’s first ground of appeal is therefore dismissed.

[1] Trial Judgement, paras 934, 953. 

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ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 87(A);
Rule 88(C)
ICTY Rule Rule 87(A);
Rule 98 ter(C)
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber found that “the fact that a decision on disqualification cannot be appealed at trial does not necessarily mean that the impartiality of a Judge cannot be considered in an appeal from a judgement.” (para. 31).

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ICTR Rule Rule 15 ICTY Rule Rule 15
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Decision on Continuation of Proceedings - 06.06.2014 ŠEŠELJ Vojislav
(IT-03-67-AR15bis)

20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation.[1]  The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”.

21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal.

22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber.

[…]

35.  […] [T]he Appeals Chamber recalls that a decision to continue the proceedings with a substitute Judge is a discretionary decision to which the Appeals Chamber owes deference:

The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.[2]

36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice.[3] The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”,[4] and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error.[5] Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.[6]

37.  The Appeals Chamber further recalls that:

There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[7]

In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.[8]

[…]

41. The Appeals Chamber therefore considers that neither the Statute nor the Rules prevented the Trial Chamber from exercising its discretion to determine, within the circumstances of the particular case before it, whether it would serve the interests of justice to continue the proceedings with a substitute Judge. […]

[…]

44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”.[9] Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review.[10] […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.[11]

[1] See Order of 3 September 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Following Decision of the Panel to Disqualify Judge Frederik Harhoff, 3 September 2013 (“Order of 3 September 2013”)], p. 2. (stating that “the interests of fairness and transparency” warrant the application of Rules 15bis(C) and 15bis(D) of the Rules mutatis mutandis to the present case); Order of 31 October 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013 (“Order of 31 October 2013”)], p. 2; Decision of 13 November 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision Inviting the Parties to Make Submissions on Continuation of Proceedings, 13 November 2013 (English translation filed on 18 November 2013) (“Decision of 13 November 2013”)], p. 3. (providing Šešelj with an opportunity to withhold his consent to the continuation of proceedings); Impugned Decision [See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Continuation of Proceedings (rendered in French on 13 December 2013, and filed in English and BCS on 23 December 2013) “Impugned Decision”], Separate Opinion of Judge Mandiaye Niang, paras 7-10, 12-14 (emphasizing that the two remaining Judges of the Trial Chamber were unanimous that the proceedings should be continued in the interests of justice); Impugned Decision, para. 51 and p. 22 (indicating that the newly appointed Judge must first become familiar with the proceedings and declare his familiarity with the record, before the proceedings continue); Motion [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Appeal of Professor Vojislav Šešelj Against the Decision of Trial Chamber III on Continuation of Proceedings Dated 13 December 2013”, filed on 30 December 2013 (“Motion”)], para. 5 (disputing the general applicability of Rule 15bis of the Rules, but in an appeal filed directly before the Appeals Chamber as would have been provided for in Rule 15bis(D) of the Rules); Response [Response to Appeal Against Decision on Continuation of the Proceedings, 20 January 2014 (“Response”)]., paras 3, 11 (referring twice to the Impugned Decision as comporting with “the object and purpose of Rule 15bis of the Rules”).

[2] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 (“Nyiramasuhuko et al. Decision of 24 September 2003”), para. 23. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15bis (D), 20 April 2007 (“Karemera et al. Decision of 20 April 2007”), para. 19.

[3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004 (“Karemera et al. Reasons filed on 22 October 2004”), paras 52, 54. Judge Shahabuddeen and Judge Schomburg each provided a declaration in relation to this matter. See Karemera et al. Reasons filed on 22 October 2004, Declaration of Judge Shahabuddeen (“Karemera et al. Declaration of 22 October 2004”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Declaration of Judge Schomburg in Relation to Reasons for Decision of Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, dated 23 October 2004 (“Karemera et al. Declaration dated 23 October 2004”).

[4] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.

[5] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.

[6] Karemera et al. Reasons filed on 22 October 2004, para. 58 (“[T]he remaining Judges erred in considering that the substitute Judge should evaluate the ‘compatibility’ of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings. This observation is incorrect because […] the substitute Judge is to ‘familiarise’ himself or herself with ‘the record’ of the proceedings, whatever that record may contain. In any event, this is done after the [decision] to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial.”). The Appeals Chamber observes that this standard is not clearly reflected in the Nyiramasuhuko et al. case, in which it was considered that “the adequacy of the record of proceedings is a matter for the substitute judge to pass on” and that if the substitute Judge does not feel adequately acquainted with the proceedings, then he or she “will not give the required certificate”. Nyiramasuhuko et al. Decision of 24 September 2003, para. 33. Given that this issue is not material to the resolution of the present Motion, the Appeals Chamber will not address it further. See also Karemera et al. Reasons filed on 22 October 2004, paras 59, 61 (finding “the fact that the testimonies were given in a language not understood by the Bench” to be an immaterial consideration that should not have been taken into account).

[7] Karemera et al. Decision of 20 April 2007, para. 42; Nyiramasuhuko et al. Decision of 24 September 2003, para. 25.

[8] Nyiramasuhuko et al. Decision of 24 September 2003, para. 27.

[9] Karemera et al. Decision of 20 April 2007, para. 43. See also Nyiramasuhuko et al. Decision of 24 September 2003, para. 33.

[10] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 29-35, 37-38.

[11] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 34-35, 37-38.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision - 08.04.2003 BLAGOJEVIĆ et al.
(IT-02-60-AR73, IT-02-60-AR73.2, IT-02-60-AR73.3)

15.     The Appeals Chamber observes that the Rules are not exhaustive as to the detailed steps or measures that Chambers may take in fulfilling the mandate of the Tribunal, but they are devised and amended in accordance with certain recognised fundamental principles that govern proceedings before the Tribunal […] The judges of the International Tribunal are given the power by Article 15 of the Statute to adopt (which includes the power to amend) the rules of procedure and evidence subject to the fundamental principles of justice set out in the Statute and international law.  These principles set the parameters for the interpretation and application of the Rules.  On the other hand, as stated by the Appeals Chamber in Aleksovski, “the purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal.”[1] It is plain from the successive amendments of the Rules that the Rules have been refined over the years through the practice of the Chambers in applying them.  New practice, which serves the mandate of the Tribunal and conforms to internationally recognised standards, may eventually be reflected in an amendment to the Rules. […] A decision which is in conformity with the principles of justice, even though not based on a written rule, does not prejudice the interests of the party. […]

[1] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision of Prosecutor’s Appeal on Admissibility of Evidence, 16 Feb. 1999, Appeals Chamber, par 19.

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ICTR Statute Article 14 ICTY Statute Article 15
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Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

15. The Appeals Chamber notes that the Trial Chambers in both the Renzaho and Karera cases were composed of the same Judges, namely Erik Møse, Sergei Alekseevich Egorov, and Florence Rita Arrey. Judges Møse and Egorov also sat on the Bagosora et al. trial.[1]

43. Renzaho provides no support for his assertion that a Judge, hearing two cases, must recuse himself or herself when a witness in the first case gives evidence against the accused in the second case. Renzaho similarly fails to support the proposition that the accused in the second case must be given a chance to respond to the witness’s evidence in the first case. The Appeals Chamber recalls that the principles of fair trial require that both the prosecution and accused have knowledge of and the opportunity to comment on the evidence adduced by the other party.[2] However, this does not entail an accused’s right to participate in any other proceedings in which his or her name may be mentioned. Moreover, the Appeals Chamber recalls that Judges are not disqualified from hearing two or more cases arising out of the same series of events and involving similar evidence.[3] Consequently, Judges hearing similar evidence may hear the same witnesses in more than one trial. As previously recalled, in the absence of evidence to the contrary, Judges are presumed to be impartial when ruling on the issues before them, relying solely and exclusively on the evidence adduced in each particular case.[4]

[1] Karera Trial Judgement, p. 150; Bagosora et al. Trial Judgement, p. 575; Trial Judgement, p. 214.

[2] Cf. Nahimana et al. Appeal Judgement, para. 181.

[3] Karera Appeal Judgement, para. 378, referring to Nahimana et al. Appeal Judgement, para. 78.

[4] Karera Appeal Judgement, para. 378, referring to Nahimana et al. Appeal Judgement, para. 78. This principle would allow reliance on judicially noticed facts and facts not in dispute.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

39. The Appeals Chamber recalls that impartiality is one of the duties that judges pledge themselves to uphold at the time they take up their duties;[1] and this applies throughout the judge’s term of office in the Tribunal.[2] This is a component of the right to a fair trial that is recognized in Articles 19 and 20 of the Statute.[3] The Appeals Chamber in the Akayesu Appeal Judgement endorsed the standards applicable to impartiality embodied in the Statute and the Rules,[4] as previously defined by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY),[5] which pointed out:

“That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties.  Under these circumstances, a Judge’s disqualification from the case is automatic; or

(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”

40. With regard to the test of the “reasonable observer”, the ICTY Appeals Chamber held that:[6]

“[...] the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”

41. The very Appeals Chamber pointed out that the Judge should rule on cases according to what he deems to be the correct interpretation of the law, by ensuring that his behaviour does not give the impression to an unbiased and knowledgeable observer that he is not impartial.[7] Lastly, the ICTY Appeals Chamber held that:[8]

“The relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [a] Judge […] might not bring an impartial and unprejudiced mind to the issues arising in the case.”

42. The Appeals Chambers of ICTY and ICTR emphasized in Akayesu and Furundžija respectively that Judges of the International Tribunal must be presumed to be impartial, and, in the instant case, the Chamber endorses the test for admissibility of an allegation of partiality set forth in the Akayesu Appeal Judgement, wherein it was held that:

“[...] There is a presumption of impartiality which attaches to a Judge.  This presumption has been recognised in the jurisprudence of the International Tribunal, and has also been recognised in municipal law.

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.” It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that the Judge in question was not impartial in his case. There is a high threshold to reach in order to rebut the presumption of impartiality.”[9]

“The Judges of this Tribunal and those of ICTY often try more than one case at the same time, which cases, given their very nature, concern issues which necessarily overlap. It is assumed, in the absence of evidence to the contrary, that by virtue of their training and experience, judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.”[10]

43. The Appeals Chamber also recalls that the Appellant must set forth the arguments in support of his allegation of bias in a precise manner, and that the Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality.[11]

[1]Rule 14(A) of the Rules relating to solemn declaration provides as follows: “Before taking up his duties each Judge shall make the following solemn declaration: ‘I solemnly declare that I will perform my duties and exercise my powers as a Judge of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for Genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, honourably, faithfully, impartially and conscientiously.’”

[2] Čelebići Appeal Judgement, para. 655.

[3] Kayishema and Ruzindana Appeal Judgement, para. 51. See also Furundžija Appeal Judgement, para. 177.

[4] Article 12 of the Statute provides that “The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices…” Rule 15(A) of the Rules adds that: “A Judge may not sit at a trial or appeal in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality. He shall in any such circumstance withdraw from that case. Where the Judge withdraws from the Trial Chamber, the President shall assign another Trial Chamber Judge to sit in his place.  Where a Judge withdraws from the Appeals Chamber, the Presiding Judge of that Chamber shall assign another Judge to sit in his place.”

[5] Furundžija Appeal Judgement, para. 189. This definition was repeated in the Čelebići and Akayesu Appeal Judgements.

[6] Furundžija Appeal Judgement, para. 190. See also Čelebići Appeal Judgement, para. 683. On the oath: see also Kayishema/Ruzindana Appeal Judgement, para. 55.

[7] Kayishema/Ruzindana Appeal Judgement, para. 55. The same Chamber also affirmed that a Judge is bound only by his “conscience and the law”, and that impartiality is a subjective test that relates to “the judge’s personal qualities, his intellectual and moral integrity.” (Ibid)

[8] Čelebići Appeal Judgement, para. 683 citing Furundžija Appeal Judgement, para. 189.

[9] Akayesu Appeal Judgement, para. 91 citing Furundžija Appeal Judgement, para. 197.

[10] Akayesu Appeal Judgement, para. 269.

[11] Ibid., paras. 92 and 100.

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Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

28. The Appeals Chamber recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal which cannot be easily rebutted.[1] It is for the party challenging the impartiality of a Judge to adduce reliable and sufficient evidence to rebut this presumption of impartiality.[2] The Appeals Chamber will consider, inter alia, whether the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]

29. The Appeals Chamber finds that the Appellant makes generalized allegations that are unsupported by any evidence which would lead a reasonable observer to apprehend bias on the part of the Trial Chamber with regard to its findings related to disclosure. The Appeals Chamber further observes that the Trial Chamber’s findings on this issue were in fact in response to a submission on this issue which the Appellant made in his original motion.[4] The Appeals Chamber therefore dismisses this ground of appeal.

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 48; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 41; The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 para. 55; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 91; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 707; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (“Furundžija Appeal Judgement”), paras. 196, 197.

[2] Nahimana et al. Appeal Judgement, para. 48; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 13; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 45; Akayesu Appeal Judgement, para. 91; Čelebići Appeal Judgement, para. 707; Furundžija Appeal Judgement, para. 197.

[3] Nahimana et al. Appeal Judgement, para. 49(B)(ii), citing Akayesu Appeal Judgement, para. 203. See also id. paras. 47, 48, 50; Furundžija Appeal Judgement, para. 189; Galić Appeal Judgement, paras. 38, 39; Rutaganda Appeal Judgement, para. 39; Čelebići Appeal Judgement, para. 682.

[4] See Rutaganda’s Urgent Motion to Obtain Transcripts of the Closed Session Testimony and the Exhibits Under Seal of witness “AWE” in the Case of Tharcisse Renzaho (ICTR-97-31-T) of 5 February 2008, para. 7.

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

28. The right of an accused to be tried before an independent tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] […] The independence of the Judges of the Tribunal is guaranteed by the standards for their selection,[2] the method of their appointment, their conditions of serviceand the immunity they enjoy. The Appeals Chamber further notes that the independence of the Tribunal as a judicial organ was affirmed by the Secretary-General at the time when the Tribunal was created,[6] and the Chamber reaffirms that this institutional independence means that the Tribunal is entirely independent of the organs of the United Nations[7] and of any State or group of States.[8] Accordingly, the Appeals Chamber considers that there is a strong presumption that the Judges of the Tribunal take their decisions in full independence, and it is for the Appellant to rebut this presumption.

32. […][T]he Appeals Chamber considers that the fact that pressures were exerted is not enough to establish that the Judges who ruled in this context on the Prosecutor’s Request for Review or Reconsideration were influenced by those pressures.

[1] Galić Appeal Judgement, para. 37; Kayishema and Ruzindana Appeal Judgement, paras. 51 and 55; Furundžija Appeal Judgement, para. 177.

[2] See Article 12 of the Statute, which provides that the Judges of the Tribunal “shall be persons of high moral character, impartiality and integrity, who possess the qualifications required in their respective countries for appointment to the highest judicial offices”.

[3] See Articles 12 bis and 12 ter of the Statute. In particular, the Judges of the Tribunal shall be elected by the General Assembly from a list submitted by the Security Council, which prevents abusive or discriminatory nominations and ensures that no State or group of States shall play a dominating role in the nomination of Judges.

[4] The conditions of service and compensation for Judges of the Tribunal are established by the General Assembly (see for example, Questions relating to the programme budget for the biennium 1998–1999, UN Doc. A/RES/53/214, 11 February 1999, section VIII). These ensure that Judges have financial security during and after their mandate.

[5] The Judges' privileges and immunities set out in Article 29(2) of the Statute guarantee their independence by protecting them from personal civil suits for improper acts or omissions in the exercise of their judicial functions.

[6] Report of the Secretary-General pursuant to paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995 (U.N. Doc S/1995/134) (“UN Secretary-General’s Report, 13 February 1995”), para. 8.

[7] Kayishema and Ruzindana Appeal Judgement, para. 55.

[8] UN Secretary-General’s Report, 13 February 1995, para. 8.

[9] The Appeals Chamber notes that the European Court of Human Rights ruled in the case of Naletilić v. Croatia (European Court of Human Rights, Decision as to the Admissibility of Application No. 51891/99, 4 May 2000, para. (1) on the impartial and independent character of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“ICTY”), and found that ICTY was “an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence, in view of the content of its Statute and Rules of Procedure”. It should be emphasised that these same guarantees were reproduced in the Statute and Rules of the Tribunal, the Statute of the Tribunal being an adaptation of that of ICTY and the Rules of the Tribunal being based on those of ICTY (see paragraphs 9 and 18 of the UN Secretary-General’s Report of 13 February 1995 and Article 14 of the Statute which provides that the Judges would adopt the Rules of Evidence and Procedure of ICTY (“ICTY Rules”) with such changes as they deemed necessary).

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Reconsideration etc. - 08.09.2004 PRLIĆ et al.
(IT-04-74-AR65.1, IT-04-74-AR65.2, IT-04-74-AR65.3 )

8. The arguments made by Petković relate to the issue of whether the duty judge exceeded the jurisdiction conferred upon her under the Rules. While the Appeals Chamber agrees with the submission of the Prosecution that the arguments of Petković are moot, the Appeals Chamber nevertheless concludes that the duty judge did not exceed her authority in remitting the motion to the Trial Chamber and ordering that the accused remain in custody pending the resolution of the Prosecution’s stay application by the Trial Chamber. Rule 28 of the Rules confers upon the duty judge the power to deal with applications in place of a Trial Chamber when that Trial Chamber is unavailable — such as when it is unable to convene in periods of court recess - provided that the duty judge is “satisfied as to its urgency or that it is otherwise appropriate to do so in the absence of the Trial Chamber”.[1] Accordingly, the duty judge had the authority to grant the Prosecution’s application for a stay pending the resolution of the Prosecution’s motion for leave to appeal the Trial Chamber’s orders if she was satisfied as to its urgency or appropriateness. The action taken by the duty judge to remand the accused into custody pending the resolution of the motion she remitted to the Trial Chamber is clearly within the authority conferred upon a duty judge by Rule 28. Petković’s application is therefore dismissed.

[1] Rule 28(D)(ii) [Rules of Procedure and Evidence].

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ICTY Rule Rule 28
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Decision on Appeal of Bureau Decision - 22.05.2006 SEROMBA Athanase
(ICTR-01-66-AR)

In this case, the Defendant sought to appeal the Tribunal Bureau’s decision not to disqualify a judge pursuant to Rule 15(B). The Appeals Chamber noted that the Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Tribunal’s Bureau pursuant to Rule 15(B).

4. The Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Bureau pursuant to Rule 15(B).[1] Rather, the Appeals Chamber’s consideration of whether a Trial Judge should have been disqualified is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[2]

5. Rule 15(B) envisions a specific two-stage process of consideration for a request to disqualify a Judge. As the Rule clearly states, an application for disqualification is to be made to the Presiding Judge of the Chamber seized of the proceedings, which in this case is Judge Khan, the Presiding Judge of Trial Chamber III.[3] The Presiding Judge is then to confer with the Judge in question. If the party disputes the Presiding Judge’s decision, the Bureau shall determine the matter in a de novo review.[4]

6. The Appeals Chamber observes that Mr. Seromba did not follow this procedure and filed his claim directly with the Bureau,[5] thereby depriving himself of the review procedure envisioned by the Rule. Although it would have been within the discretion of the Bureau to dismiss Mr. Seromba’s request as improperly filed,[6] the Appeals Chamber cannot conclude that it erred in considering the matter in the first instance.

[1] See generally The Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003, para. 8 (“Galić Appeals Chamber Decision”); The Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-60, Decision on Blagojević’s Motion for Clarification, 27 March 2003, para. 4 (ICTY Bureau) (“Blagojević Decision”).

[2] See Galić Appeals Chamber Decision, para. 8; Blagojević Decision, paras. 4, 5. For example, the Appeals Chamber has considered the impartiality of Trial Judges in Laurent Semanza v. The Prosecutor, Case No. ICTR 97-20-A, Judgement, 20 May 2005, paras. 12-58; The Prosecutor v. Edouard Karemera et al., Case No. 98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, paras. 62-68; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR 96-14-A, Judgement, 9 July 2004, paras. 43-46; The Prosecutor v. Jean Paul Akayesu, Case No. 96-4-A, 1 June 2001, paras. 85-101. See also The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, paras. 164-215.

[3] See The Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-PT, Decision on Disqualification of the Appeals Chamber, 9 December 2004, para. 3 (ICTY Bureau) (“Šešelj  Decision”); Galić Appeals Chamber Decision, paras. 8, 9.

[4] Šešelj  Decision, para. 3; Galić Appeals Chamber Decision, paras. 8, 9; The Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Decision on Galić’s Application pursuant to Rule 15 (B), 28 March 2003, para. 7.

[5] Impugned Decision, para. 4.

[6] Šešelj  Decision, para. 3.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision Regarding Recusal of Judge - 24.02.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

15. The Panel considers as insubstantial the argument of the Defence that Judge Liu, having disagreed with the majority in the decision to disqualify Judge Harhoff as a Judge in the Šešelj case, is not in a position to adjudicate the Motion to vacate the Trial Judgement without an unacceptable appearance of bias. The Panel, in this context, considers that Judge Liu's position on the bench of a special chamber deciding on the matter of Judge Harhoff's disqualification in the Šešelj case at trial level must be distinguished from his adjudication of the Motion to Vacate the Trial Judgement in the Stanišić and Župljanin case as a member of the Appeals Chamber. In this latter capacity Judge Liu is not, as the Defence argues, dealing with the issue of disqualification of Judge Harhoff as such.[1] Notwithstanding the fact that the basis for the disqualification of Judge Harhoff may be a relevant factor when considering the Motion to Vacate the Trial Judgement, the Panel finds that consideration of this factor does not of itself constitute a circumstance which would lead a reasonable and informed observer to be of the view that Judge Liu might not bring an impartial and unprejudiced mind to the issues to be adjudicated in that motion.

16. The Panel concludes that the Defence has not demonstrated, as required, a reasonable apprehension of bias on the part of Judge Liu from the standpoint of a reasonable observer. It is not convinced by the submissions of the Defence that Judge Liu, having previously dissented on the issue of disqualification of Judge Harhoff, would be unable to impartially decide on the Motion to Vacate the Trial Judgement. In this respect, the Panel concurs with the reasoning set out by the Acting President in his Decision on Motion for Recusal in that a motion to vacate a trial judgement involves issues that need not be addressed in the context of a motion to disqualify a Judge.[2]

[1] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Stojan Župljanin’s Reply to Prosecution’s Response to Motions to Vacate Trial Judgement, Provisional Release and for Recusal of Judge Liu Daqun, 28 October 2013], para. 12.

[2] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Motion Requesting Recusal, 3 December 2013], para. 23 and fn. 37. 

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

55.     As a rule, a fair trial requires that a set of procedural rules be established to ensure equality between the parties to the case and guarantee the independence of the Tribunal and the impartiality of the judges. A judge is presumed to be impartial until proven otherwise[1]. This is a subjective test: impartiality relates to the judge’s personal qualities, his intellectual and moral integrity. A judge is bound only by his conscience and the law. That does not mean that he rules on cases subjectively, but rather according to what he deems to be the correct interpretation of the law, ensuring for an unbiased and knowledgeable observer that his objectivity does not give the impression that he his impartial, even though, in fact, he is. Moreover, before taking up his duties, each judge makes a solemn declaration obliging him to perform his duties and exercise his powers as a judge “honourably, faithfully, impartially and conscientiously.”[2] The independence of the Tribunal is measured by an objective test: as a judicial organ with jurisdiction, as established by Security Council resolution 955, it is entirely independent of the organs of the United Nations.

[1] See Furundžija Appeal Judgement, paras. 196 and 197. See also Akayesu Appeal Judgement, para. 90 et seq., Čelebići Appeal Judgement, para. 682 et seq., and para. 698 et seq.

[2] Article 14(A) of the Rules.

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Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

9. The Appeals Chamber will address two preliminary arguments. First, the Appellants contend that the two remaining judges in the Butare trial sat in the plenary which amended Rule 15bis on 27 May 2003 and that this impaired their impartiality.  The argument overlooks the fact that judges can in a legislative capacity make rules without prejudice to their right to pronounce in a judicial capacity on the vires or operation of the rules so made. In this case, article 14 of the Statute, which gives a rule-making competence to the judges of the Tribunal, does not prevent them from later deciding in their judicial capacity on the vires or operation of the rules adopted.

[1] The Appellants also argue that the amendment was designed to prevent them from benefiting from their previous refusal to consent. See, for example, the submissions of Nyiramasuhuko in her notice of appeal, paras.12-14, and Nteziryayo’s notice of appeal, paras. 15-17.

[2] Smokovitis v. Greece, ECHR, 11 April 2002, concerned a legislative judgment relating to specific claims, and not the laying down of a legislative norm; it is distinguishable.

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ICTR Statute Article 14 ICTY Statute Article 15
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Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

11. The Appeals Chamber considers that anyone exercising a judicial power has the responsibility and the competence to ensure that he has the power which he is proposing to exercise. The new Rule 15bis (D) gives a judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge. This power comprehends the incidental power to decide whether or not this provision is applicable to the particular case of the Butare trial. This incidental power has to be exercised by the two remaining judges to whom the main power is entrusted. […]

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

25. There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages. The Appellants have not attacked the procedure prescribed by Rule 15(A) or Rule 15(B). Under these provisions, a witness could be heard by two judges; that the procedure is, in effect, available only over a short period of time is not relevant to the principle involved. Nor have the Appellants attacked the procedure prescribed by the old Rule 15(C) by virtue of which, in a part-heard case, a substitute judge could come in for the remainder of the trial; that this was possible only with the consent of the accused (where opening statements had been made or evidence had begun to be presented) was, again, not relevant to the principle involved. And then there is the case of deposition evidence admitted under Rule 71. In all these cases, the temporarily absent judge or the substitute judge, as the case may be, is faced with the task of evaluating evidence not given before him.

[…]

34.     The recomposed Trial Chamber may recall witnesses so as to enable the substitute judge to assess their demeanour on particular points. The recall decision would be made by the recomposed Trial Chamber after the proposed judge has joined it. Where video-recordings are available, an absent judge who reviews such recordings does so as a member of the bench, as in all the cases mentioned in paragraph 25 above. In like manner, in this case the substitute judge would be hearing recalled testimony as a member of the recomposed Trial Chamber. The recall power lies within the normal competence of the recomposed Trial Chamber. It was not for the two judges to authorize it to exercise that competence, although they could note that competence.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

32. On the issue of disqualification of Judges, Rule 15(A) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides that “[a] Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality.”[1] In light of Article 13 of the Statute – which requires Judges to be, inter alia, impartial – Rule 15(A) of the Rules has been interpreted and applied in accordance with the principle that a Judge is not impartial if actual bias or an unacceptable appearance of bias exists.[2] The Appeals Chamber also notes that a Judge who has not met the requirements of this Rule in a specific case has otherwise been entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases when he fulfils the requirements of Rule 15 of the Rules in those other cases.[3] The Appeals Chamber therefore considers that determinations of actual bias or unacceptable appearance of bias under Rule 15 of the Rules should be made on a case‑by‑case basis.[4] Accordingly, the Appeals Chamber finds that Judge Harhoff’s disqualification in the Šešelj case, which was determined pursuant to Rule 15 of the Rules, does not automatically disqualify him from other cases. Stanišić and Župljanin therefore cannot rely on a finding of apparent bias made in another case and must instead show that those actions of Judge Harhoff which allegedly demonstrate an unacceptable appearance of bias, impacted on his impartiality in their trial proceedings.[5]

33. Additionally, as held by the Appeals Chamber, there has been no general finding or final determination on Judge Harhoff’s partiality with regard to the present case,[6] and the factual findings in the Šešelj Decisions were limited to the particular circumstances of that case.[7] The Appeals Chamber emphasises in this respect that, as a rule, factual findings made by one chamber are not binding upon subsequent chambers.[8] The Appeals Chamber also does not find Stanišić and Župljanin’s argument that the Šešelj case and the current proceedings are “identical” to be persuasive.[9] Recalling that it is the burden of the party seeking disqualification of a Judge to demonstrate a reasonable apprehension of bias,[10] the Appeals Chamber notes that the arguments presented in the Šešelj case, as well as the evidence considered, differ from those in this case, and that in the Šešelj case, the Letter was sent by Judge Harhoff while the case was ongoing.[11] Thus, Stanišić and Župljanin’s reliance on the findings in the Šešelj case is insufficient to meet their burden of proof. Furthermore, the Appeals Chamber considers that Stanišić takes out of context the Acting President’s Order Replacing Judge Harhoff in the Šešelj proceedings.[12] It is clear that the relevant statement in the order, i.e. that Judge Harhoff’s disqualification was “therefore now final”, concerned the finality of the disqualification pursuant to Rule 15 of the Rules in the Šešelj proceedings and related only to that case.[13] Similarly, Stanišić and Župljanin’s argument that a different conclusion on Judge Harhoff’s impartiality in this case would invalidate the Šešelj Decisions is without merit and is dismissed.

[1] See Šainović et al. Appeal Judgement, para. 179.

[2] Furundžija Appeal Judgement, paras 189-191; Šainović et al. Appeal Judgement, paras 179-181. See Furundžija Appeal Judgement, para. 175 (noting that Rule 15(A) of the Rules calls for a Judge to withdraw from a particular case if he or she believes that his or her impartiality is in question).

[3] See Čelebići Appeal Judgement, para. 683 (stating that the “relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [the Judge]] might not bring an impartial and unprejudiced mind to the issues arising in the case” (emphasis added)). See also Delalić et al. Disqualification and Recusal Decision [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 October 1999]], para. 9 (“If the Judge does not fulfil the requirements referred to in Rule 15(B), he or she is disqualified from hearing that particular case, although he or she is fully entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases”).

[4] See Delalić et al. Disqualification and Recusal Decision, paras 9-10. See also Prosecutor v. Chea Nuon et al., Case No. 002/19-09-2007/ECCC/TC, Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests, 28 January 2011, para. 7 (“It follows that a finding of bias in a case does not by itself require the judge’s disqualification from other, unrelated cases.”).

[5] See Furundžija Appeal Judgement, paras 197 (“It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that Judge Mumba was not impartial in his case”), 200 (“even if it were established that Judge Mumba expressly shared the goals and objectives […]] in promoting and protecting the human rights of women, that inclination, being of a general nature, is distinguishable from an inclination to implement those goals and objectives as a Judge in a particular case”).

[6] See Decision on Mićo Stanišić’s Motion requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, 2 April 2014 (“Mistrial Decision”), para. 25.

[7] Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014, para. 15, referring to Mistrial Decision, para. 25.

[8] See Mistrial Decision, para. 25 (with references cited therein).

[9] See supra [Stanišić and Župljanin Appeal Judgement]], para. 30.

[10] See Furundžija Appeal Judgement, para. 197; supra [Stanišić and Župljanin Appeal Judgement]], para. 44.

[11] See e.g. Šešelj Decision on Disqualification [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Defence Motion for Disqualification of Judge Frederik Harhoff and Report to the Vice-President, 28 August 2013]], paras 2 (the Šešelj Defence argued that Judge Harhoff had a strong inclination to convict accused persons of Serbian ethnicity, and contended that contempt proceedings should be initiated), 8-14 (no consideration in the Šešelj case of the Rebuttal Material); Šešelj Reconsideration Decision [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration of Decision on Disqualification, Requests for Clarification, and Motion on Behalf of Stanišić and Župljanin, 7 October 2013]], paras 12‑20 (no consideration in the Šešelj case of the Media Articles, but the Special Chamber found that the Memorandum was immaterial and not probative).

[12] See supra [Stanišić and Župljanin Appeal Judgement]], para. 30; Šešelj Order Replacing Judge Harhoff [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013]].

[13] Šešelj Order Replacing Judge Harhoff, p. 1.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

45. As a preliminary matter, insofar as Župljanin argues that the reasonable apprehension of bias test should be applied with “reference to a reasonable observer properly informed from any of the ethnic groups affected by Judgements of the Tribunal”,[1] the Appeals Chamber first observes that the references cited by Župljanin do not support his assertion.[2] Second, the Appeals Chamber recalls that the “reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.[3] Župljanin’s argument, suggesting a departure from this principle and asserting that the reasonable observer must come from the region, is thus dismissed.

[…]

47. Another preliminary issue concerns the Prosecution’s submission that Judge Harhoff’s numerous rulings against it in this case demonstrate a lack of bias. The Appeals Chamber observes that, although Judge Harhoff took decisions that resulted favourably for Stanišić and Župljanin, his judicial record in this case is not instructive as to whether a reasonable observer properly informed could apprehend bias.[4] The Appeals Chamber notes, in particular, that Judge Harhoff’s judicial record does not take into account that procedural decisions have limited impact on the substantive issues to be decided in a final trial judgement.

[…]

55. The Appeals Chamber further considers that the Letter contains no language which would suggest to a reasonable observer that Judge Harhoff believed that a finding of guilt could be made without reviewing the particular evidence of a case or that he had difficulty applying the Tribunal’s jurisprudence. A reasonable observer properly informed of all the circumstances would have regard for the fact that Judges are presumed to be impartial, and that before taking up his duties, Judge Harhoff made a solemn declaration to perform his duties “honourably, faithfully, impartially and conscientiously”.[5] The Appeals Chamber considers that a fair‑minded and informed observer would regard this judicial oath as an important protection against the appearance of bias. Additionally, the reasonable observer would consider Judge Harhoff’s role as a Judge of the Tribunal and his professional experience. While Judge Harhoff’s views on the law as expressed in the Letter do not align with the current case law of the Tribunal, Judge Harhoff was (at the time of writing the Letter) a Judge of the Tribunal and a legal professional who was to be relied upon to bring an impartial mind to the evidence and issues before him.[6] The Appeals Chamber considers that, in the absence of evidence to the contrary, a reasonable observer properly informed of these circumstances would presume that Judge Harhoff as a Judge of the Tribunal could disabuse his mind of any irrelevant personal beliefs or predispositions.[7]

[1] Župljanin Additional Appeal Brief, paras 16-17, referring to Piersack v. Belgium [Piersack v. Belgium, Application No. 8692/79, ECtHR, Judgement, 1 October 1982]], para. 30, Hoekstra v. HM Advocate [Hoekstra v. HM Advocate (No. 2) (Scottish High Court of Justiciary), 2000 J.C. 391]], paras 18, 22.

[2] See Župljanin Additional Appeal Brief [Stojan Župljanin’s Supplement to Appeal Brief (Ground Six), 26 June 2014]], para. 16, referring to Piersack v. Belgium, para. 30 (discussing generally the objective test but not the attributes of the reasonable observer); Hoekstra v. HM Advocate, paras 18, 22 (considering that the Judge in question could not be seen to have been impartial, especially on the part of the Dutch appellants).

[3] Šainović et al. Appeal Judgement, para. 181; Furundžija Appeal Judgement, para. 190. See Karadžić Disqualification Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-05/18-PT, Decision on Motion to Disqualify Judge Picard and Report to the Vice-President Pursuant to Rule 15(B)(ii), 22 July 2009]], para. 18 (referring to the perception of the hypothetical fair-minded observer with sufficient knowledge of the circumstances to make a reasonable judgement), fn. 55.

[4] See Karemera et al. Disqualification Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion for Disqualification of Judge Byron and Stay of the Proceedings, 20 February 2009]], para. 15 (considering that a comparison of decisions to detect a pattern “is troublesome” as all decisions are made on an individual basis as a result of particular request, and also that the decisions in question were decided by a three Judge panel and not by a particular Judge).

[5] Rule 14(A) of the Rules (emphasis added).

[6] See Article 13 of the Statute (Judges are required to be “persons of high moral character, impartiality and integrity”); Rule 14 of the Rules (Judges are required to take an oath to exercise their powers “honourably, faithfully, impartially and conscientiously”).

[7] See Šainović et al. Appeal Judgement, para. 181; Furundžija Appeal Judgement, paras 196-197.

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Notion(s) Filing Case
Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

71.     […] The Appeals Chamber reiterates that as “professional judges, members of the Rwandan judiciary benefit from a presumption of independence and impartiality”.[1] Thus, their personal impartiality must be presumed until there is proof to the contrary.[2] This presumption cannot be easily rebutted and it is for the party alleging bias to rebut it on the basis of adequate and reliable evidence.[3] In this respect, there is a high threshold to reach and the reasonable apprehension of bias must be firmly established.[4] […]

[1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 24.

[2] See, e.g., The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-A, Judgement, 28 September 2011, para. 115; Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011, para. 43. See also Kyprianou v. Cyprus [2005] ECHR 873, para. 119.

[3] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015, paras. 95, 405 and references cited therein; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement”), para. 45.

[4] Niyitegeka Appeal Judgement, para. 45 and references cited therein.

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Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

406. While the possibility is not ruled out that decisions rendered by a judge or a chamber could suffice to establish bias, it was held that this would be “truly extraordinary”.[1] In this regard, the Appeals Chamber notes that the European Court of Human Rights has affirmed on several occasions that complaints concerning judges’ lack of independence and impartiality grounded on the content of judicial decisions cannot be considered objectively justified.[2]

See also paras. 95, 771, 2843.

[1] Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Request for Disqualification of Judge Pocar, 6 June 2012, para. 17, referring to Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-60-PT, Decision on Blagojević’s Application Pursuant to Rule 15(B), 19 March 2003, para. 14.

[2] See, e.g., Dimitrov and others v. Bulgaria, ECtHR, No. 77938/11, Judgement, 1 July 2014, para. 159 (“Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary […]. The facts that some of the judges hearing the case ruled against them on some points or decided to proceed in a certain manner do not constitute such proof”); Previti v. Italy, ECtHR, No. 45291/06, Décision sur la recevabilité, 8 December 2009, para. 258 ("La Cour a cependant eu l’occasion de souligner que des craintes quant à un manque d’indépendance et d’impartialité des juges nationaux se fondant uniquement sur le contenu des décisions judiciaires prononcées contre un requérant (Bracci précité, § 52) ou sur les simples circonstances qu’une juridiction interne a commis des erreurs de fait ou de droit et que sa décision a été annulée par une instance supérieure (Sofri et autres, décision précitée) ne sauraient passer pour objectivement justifiées.”); Bracci v. Italy, ECtHR, No. 36822/02, Arrêt, 15 February 2006, para. 52 (“La Cour observe également que les craintes du requérant d'un manque d'indépendance et d'impartialité des juges nationaux se fondent uniquement sur le contenu des décisions judiciaires prononcées à son encontre. Elles ne sauraient dès lors passer pour objectivement justifiées.”); Sofri and others v. Italy, ECtHR, No. 37234/97, Decision, 4 March 2003, Section B.2.a (“Moreover, the fact that a domestic court has erred in fact or law or that its decision has been set aside by a higher court is not capable by itself of raising objectively justified doubts about its impartiality.”).

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

9.       The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges.[1] Legal officers 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.[2]

10.     Notwithstanding the above, 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.[3] In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[4] The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.[5]

[…]

37.     When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.”[6] It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases.[7] The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.[8]

38.     With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test,[9] the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision,[10] as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case[11] without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning.

39.     Moreover, the Appeals Chamber recalls 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 create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.”[12] Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case.

See also paragraphs 30, 33.

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 273, referring to, inter alia, Bizimungu et al. Appeal Decision, para. 9, Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR‑00-55B-A, Judgement, 8 May 2012 (“Hategekimana Appeal Judgement”), para. 20.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 273; Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], para. 9.

[3] Bizimungu et al. Appeal Decision, para. 11.

[4] See, e.g., Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (“Stanišić and Župljanin Appeal Judgement”), para. 43 and references cited therein.

[5] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 44 and references cited therein; Nyiramasuhuko et al. Appeal Judgement, para. 273; Hategekimana Appeal Judgement, para. 16.

[6] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 22.

[7] Impugned Decision, para. 23.

[8] Impugned Decision, para. 26.

[9] See supra, para. 17.

[10] Impugned Decision, paras 9-10.

[11] Impugned Decision, paras 22-23.

[12] Hategekimana Appeal Judgement, para. 20, quoting Bizimungu et al. Appeal Decision, para. 10.

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

30.     The Appeals Chamber is of the view that the Trial Chamber correctly recalled that the Impugned Staff provides assistance to the Judges while the decision-making remains entirely in the Judges’ purview and that neither the Rules of Procedure and Evidence of the Tribunal nor the related jurisprudence provide for the disqualification of the Impugned Staff.[1] […]

[1] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 18. See also Impugned Decision, para. 14, referring to Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], paras 5, 9; Nyiramasuhuko et al. Appeal Judgement, para. 273; In the Case against Florence Hartmann, Case No. IT‑02‑54‑R77.5, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, 27 March 2009 (public redacted version), para. 54.

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Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

11.     It is self-evident that justice and the rule of law begin with an independent judiciary.[1] The right to be tried before an independent and impartial tribunal is an integral component of the right to a fair trial enshrined in Article 19 of the Statute[2] and embodied in numerous human rights instruments.[3] The United Nations Human Rights Committee has stated that the right to an independent and impartial tribunal “is an absolute right that may suffer no exception”.[4] To uphold this right, in the exercise of their judicial functions, the judges of the Mechanism shall be independent of all external authority and influence, including from their own States of nationality or residence.[5] A corollary guarantee for the independence of the Mechanism’s judges is contained in Article 29 of the Statute, which provides for full diplomatic immunity for judges during the course of their assignments – even while exercising their functions in their home country.[6] Accordingly, diplomatic immunity is a cornerstone of an independent international judiciary, as envisaged by the United Nations. The ability of the judges to exercise their judicial functions first and foremost from their home countries reflects the unique characteristics of the Mechanism, which was intended to ensure justice coupled with cost‑savings and efficiency.[7] Turkey was a member of the United Nations Security Council at the time of the consideration of our Statute and voted in favour of its adoption,[8] a Statute which guarantees an independent judiciary and full diplomatic immunity for our judges while performing their work.[9] […]

[1] See United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 26 August - 6 September 1985, endorsed by United Nations General Assembly Resolutions A/RES/40/32 and A/RES/40/146 of 29 November 1985 and 13 December 1985, respectively (“U.N. Basic Principles on the Independence of the Judiciary”).

[2] See Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (public with confidential Annex C), para. 42; Prosecutor v. Nikola [ainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 179; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008, para. 39; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, para. 177, n. 239. See also Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on Motion for Disqualification, 10 June 2003, pp. 2-3 (“Judges […] serve only the international community” and “disavow any influence by the policies of any government, including the government of their home country”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision of the Bureau on Motion on Judicial Independence, 4 September 1998, pp. 7-9.

[3] See Universal Declaration of Human Rights, 10 December 1948, United Nations General Assembly Resolution 217 A (III), Article 10 (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”); International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 14(1) (“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”); European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Article 6(1) (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”); American Convention on Human Rights, Costa Rica, 22 November 1969, Article 8(1) (“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”). See also African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 26 (“States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.”).

[4] Case of Miguel Gonzáles del Río v. Peru, Communication No. 263/1987, para. 5.2.

[5] See U.N. Basic Principles on the Independence of the Judiciary, Principle 2 (“The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”); The Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity as revised at the Round Table Meeting of Chief Justices, 25-26 November 2002, Value 1.1 (“A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”); The Burgh House Principles on the Independence of the International Judiciary, drafted by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals, Preamble (“Considering the following principles of international law to be of general application: to ensure the independence of the judiciary, judges must enjoy independence from the parties to cases before them, their own states of nationality or residence, the host countries in which they serve, and the international organisations under the auspices of which the court or tribunal is established”). See also Code of Professional Conduct for the Judges of the Mechanism, MICT/14, 11 May 2015, Article 2.1 (“In the exercise of their judicial functions, judges shall be independent of all external authority or influence.”).

[6] See, e.g., Article 29 of the [MICT] Statute. Cf. also ICJ Advisory Opinion on Differences Relating to Immunity from Legal Process, paras. 60, 61, 67 (upholding the immunity of a United Nations Special Rapporteur against legal process in his national country); Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 177, paras. 51, 61 (holding that United Nations Special Rapporteurs enjoy privileges and immunities in their relation with the States of which they are nationals or on the territory of which they reside).

[7] See United Nations Security Council Resolution 1966, U.N. Doc. S/RES/1966, 22 December 2010 […] (emphasizing that the Mechanism should be a “small, temporary and efficient structure”); See also Article 8(3) of the [MICT] Statute.

[8] See United Nations Security Council Report, Special Research Report, No. 3, 17 September 2010, p. 1; U.N. Doc. S/PV.6463, 22 December 2010, p. 3.

[9] See Articles 19 and 29 of the [MICT] Statute.

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MICT Statute Article 8(3);
Article 19;
Article 29(2)
Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

[1] See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9.

[2] See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).

[3] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.

[4] See ECHR Ref. No. 59/17.

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MICT Statute Article 19
Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

16.     I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction,[1] there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism.[2] Such orders have been implemented.[3] In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism.

[1] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010 (“Bagosora et al. Decision of 6 October 2010”), para. 18.

[2] See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Directed to the Republic of Croatia, 18 February 2011, p. 2; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, paras. 36, 45, 67, 71; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Stay of Proceedings, 27 January 2011 (“Bagosora et al. Decision of 27 January 2011”), para. 10; Bagosora et al Decision of 6 October 2010, paras. 20-31.

[3] See, e.g., Prosecutor v. Ante Gotovina et al.,Case No. IT-06-90-A, Communication dated 12 October 2011 from the Ministry of Justice of the Republic of Croatia (Proceedings Pursuant to the Order of the ICTY Trial Chamber Dated 18 February 2011), 14 October 2011 (confidential), Registry Pagination. 3043; Bagosora et al Decision of 27 January 2011, para. 10.

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MICT Statute Article 28