Right to be tried before an independent tribunal
|Appeal Judgement - 28.11.2007||
NAHIMANA et al. (Media case)
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. […] The independence of the Judges of the Tribunal is guaranteed by the standards for their selection, 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, 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.
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.
 Galić Appeal Judgement, para. 37; Kayishema and Ruzindana Appeal Judgement, paras. 51 and 55; Furundžija Appeal Judgement, para. 177.
 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”.
 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.
 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.
 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.
 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.
 Kayishema and Ruzindana Appeal Judgement, para. 55.
 UN Secretary-General’s Report, 13 February 1995, para. 8.
 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).
|ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)|
|Order to Government for Release of Judge - 31.01.2017||
11. It is self-evident that justice and the rule of law begin with an independent judiciary. 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 and embodied in numerous human rights instruments. 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”. 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. 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. 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. 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, a Statute which guarantees an independent judiciary and full diplomatic immunity for our judges while performing their work. […]
 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”).
 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.
 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.”).
 Case of Miguel Gonzáles del Río v. Peru, Communication No. 263/1987, para. 5.2.
 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.”).
 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).
 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.
 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.
 See Articles 19 and 29 of the [MICT] Statute.
|Order to Government for Release of Judge - 31.01.2017||
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, 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. 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,  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.
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.
 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.
 See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).
 See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.
 See ECHR Ref. No. 59/17.
|MICT Statute Article 19|