|Appeal Judgement - 28.11.2007||
NAHIMANA et al. (Media case)
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.
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. 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. 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.
 Regarding the procedure to be followed, this Rule has not been amended since.
 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.
 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.”)