Impartiality

Notion(s) Filing Case
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.”).

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
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.

Download full document
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.

Download full document
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. […]

Download full document
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). 

Download full document
Notion(s) Filing Case
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. 

Download full document
ICTR Rule Rule 15 ICTY Rule Rule 15
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.

Download full document
ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
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.

Download full document
ICTR Statute Article 14 ICTY Statute Article 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.

Download full document
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.

Download full document
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.”).

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
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.

Download full document
MICT Statute Article 8(3);
Article 19;
Article 29(2)