This is the fifth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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C. A Judge’s Ethical Obligation to Disclose
Next, I discussed a Judge’s ethical obligation to disclose. Judges must disclose facts that may affect (or perceive to affect) their impartiality; facts that could lead a reasonable, informed observer to objectively apprehend bias.
ICTR Prosecutor v. Karemera, Disqualification of Judge Vaz
In the ICTR case Karemera, the Defence requested that Judge Vaz recuse herself because of her alleged cohabitation with Ms. Dior Fall, one of the trial attorneys for the prosecution during the case. Although Judge Vaz ultimately withdrew, the Appeals Chamber noted the improper conduct and held that the Judge should have disclosed the facts of her accommodation prior to the Defence’s objection:
The particular circumstances involved here include, in addition to the admitted association and cohabitation, the fact that Judge Vaz did not disclose these facts until Defence counsel expressly raised this matter in court and that she withdrew from the case after Defence lodged applications for her disqualification on this basis and before the Bureau decided the disqualification motions. The Appeals Chamber finds that these circumstances could well lead a reasonable, informed observer to objectively apprehend bias. The Appeals Chamber emphasizes that this is not a finding of actual bias on the part of Judge Vaz, but rather a finding, made in the interests of justice, that the circumstances of the case gave rise to an appearance of bias.
SCSL Prosecutor v. Sesay: Disqualification of Judge Robertson
In the Sesay case before the SCSL, the Defence had applied for disqualification seeking Judge Robertson’s permanent removal from the Special Court on the basis of comments Judge Robertson had made concerning the Revolutionary United Front (RUF) in his book Crimes Against Humanity published before his appointment to the Special Court. In his book, Judge Robertson had accused the RUF of committing various international crimes and atrocities, and had named Charles Taylor as the RUF’s sponsor. One would have thought that Judge Robertson, an eminent human rights barrister, would realize the obvious and recuse himself, or at the very least bring the matter to the attention of the Defence. Curiously, he did not; hubris of him to think that he could sit in judgment over those he had pre-judged. In considering the application, the Appeals Chamber noted “[t]he crucial and decisive question is whether an independent bystander, so to speak, or the reasonable man, reading the passages will have a legitimate reason to fear that Judge Robertson lacks impartiality. In other words, whether one can apprehend bias.” In this case, Appeals Chamber presiding Judge King had “no doubt that a reasonable man will apprehend bias, let alone an accused person” satisfying the Furundžija test for bias. In disqualifying Judge Robertson, the Appeal Chamber quoted Lord Hewart C.J. in R. v. Sussex Justices, Ex parte McCarthy: “Justice must not only be done, but should manifestly and undoubtedly be seen to be done.”
SCSL Prosecutor v. Norman: Attempted Recusal of Judge Winter from Deliberating on the Preliminary Motion concerning the Recruitment of Child Soldiers
A similar instance occurred in the Norman case before the SCSL. In Norman, the Defence moved to recuse Judge Winter from hearing a motion on the illegality of the recruitment of child soldiers. This request was based primarily on the fact that the Appeals Chamber had received an amicus curiae brief from UNICEF, of which Judge Winter had prior association and was acknowledged to have had assisted with UNICEF publications on the issue of child soldier recruitment. When investigated by the Defence, Judge Winter declined to provide information about her relationship with UNICEF. Elaborating on the Furundžija test, the Appeals Chamber held that:
While it is not necessary that such an interest be of financial or pecuniary nature, it must be that the judge in question ‘is so closely associated […] that he can properly be said to have an interest in the outcome of the proceedings.’ Such a personal interest of particular concern is different from a personal interest in the subject matter of the case. The fact that there may be some history of professional association, however limited, is not alone sufficient to meet the threshold.
The Defence argued that it was clear that Judge Winter remained firmly committed to her views expressed in the report. However, the Appeal Chamber dismissed the motion, holding that “the fact that Justice Winter may have expressed an opinion which is unfavorable to the Defence is not sufficient ground for bias.”
ICTY Prosecutor v. Prlić, Prlić’s Motion to Disqualify Judge Prandler
In the ICTY Prlić case, the Prlić Defence moved for the disqualification of Judge Arpad Prandler “on the basis of an alleged appearance of bias resulting from Judge Prandler’s previous association with Victor Andreev, the Head of the United Nations Civil Affairs in Bosnia and Herzegovina.” According to the Prlić Defence, Judge Prandler had first “an ethical obligation to disclose—promptly and with details—his previous association with Andreev” and also “the opportunity to reveal his association with Andreev, for example, when the Prosecution introduced UN documents in which Andreev’s name appeared.”
Judge Prandler only revealed his knowledge of Andreev, without providing discernable information, after he stated that he found the Accused Petkovic’s testimony concerning Andreev disquieting. It was revealed that Andreev had been a key character in the Mladić Diaries, in which the Prlić Defence was able to surmise “Andreev’s dark character and questionable pro-Bosnian Serb / anti-Bosnian Croat activities.” The Prlić Defence had first filed a Request for Clarification seeking full disclosure of Judge Prandler’s association with Andreev, which was denied by the Trial Chamber. The Prlić Defence appealed the decision, arguing that Judge Prandler, due to his association with Andreev may give undue weight to unreliable evidence because of its generation by or association with Andreev. In his Decision, the President of the Tribunal Judge Patrick Robinson held that the:
[T]he general practice of the Tribunal in respect of the procedure for adjudicating disqualification motions under Rule 15 of the Rules has been for the moving party to apply to the Presiding Judge of the Chamber to which the case is assigned, rather than the Presiding Judge of the specific case. The Presiding Judge of the Chamber, not the Presiding Judge of the specific case, then confers with the Judge in question and reports to the President.
The Prlić Defence then re-filed the Disqualification Motion before the Presiding Judge of Trial Chamber III, Judge Kwon. Pursuant to Rule 15(B)(i), Judge Kwon investigated the concerns raised in the Disqualification Motion. He denied the motion, and sent his Report to the President of the Tribunal, Judge Robinson. Judge Robinson issued a Decision on the merits and held that the Defence teams (the Praljak Defence joined in the motion) “have not established any actual bias or the appearance of bias on the part of Judge Prandler and have not rebutted the strong presumption of [Judge Prandler’s] impartiality.” President Robison also held that there was no need to appoint a three-Judge panel pursuant to Rule 15(B)(ii), which states that “[f]ollowing the report of the Presiding Judge, the President shall, if necessary, appoint a panel of three Judges drawn from other Chambers to report to him its decision on the merits of the application.”
D. Actual Bias and Improper Conduct
ICTY Prosecutor v. Blagojević, Blagojević’s Motion to Disqualify the Trial Chamber (Judges Schomburg, Mumba and Agius)
Showing actual bias is difficult, especially when the impugned conduct is subject to interpretation. Occasionally, however, a case comes along where the facts, as interpreted through a judicial finding, arguably demonstrate the actual bias claimed. As an example, I discussed the Blagojević case in which the Trial Chamber refused to apply the precedent from the Appeals Chamber in order to demonstrate actual bias. In Blagojević, the Trial Chamber refused to accept a guarantee from the Republika Srpska, one of the federal entities in the state of Bosnia and Herzegovina, although the Trial Chamber had accepted guarantees from the Federation of Bosnia and Herzegovina (FBiH), the other federal entity within Bosnia and Herzegovina. The Trial Chamber considered that it would be acting ultra vires if it were to base itself on guarantees offered by the Republika Srpska, a federal entity, despite the fact that it had accepted such guarantees in Jokić from the FBiH. On appeal, the Appeals Chamber found that:
[T]he Trial Chamber was bound to accept and to apply the decision of the Appeals Chamber in Jokic which provides that, as a matter of law and for the purpose of the International Tribunal, an undertaking by Republika Srpska qualifies for acceptance, whether or not it is a sovereign state as defined under public international law. The Appeals Chamber hereby reiterates that there is nothing in either the Tribunal’s Statute or the Rules of Procedure and Evidence which limits the identity of the body giving an undertaking to a state as recognised by public international law, and therefore sees no cogent reason to depart from its previous jurisprudence.
On remand, the Trial Chamber again did not consider the guarantees as instructed to do so by the Appeals Chamber. This matter was once again before the Appeals Chamber, which found that:
The Trial Chamber was invited to clarify the issue raised proprio motu. That invitation was intended to give to the Trial Chamber the opportunity to confirm that it had taken the guarantee into account, and to explain that the absence of any express reference in the Impugned Decision to having done so was no more than an oversight. The Trial Chamber did not respond to that invitation, which leads to the inference that it was unable to give such a confirmation. The Appeals Chamber is satisfied from this and all circumstances that the Trial Chamber did not comply with the directions to take the Republika Srpska guarantees into account in its reconsideration of Blagojević’s application for provisional release. Notwithstanding the submission made by Blagojević that the Impugned Decision ‘seems to suggest a reluctance by the Trial Chamber to accept and apply the decision of the Appeals Chamber in Jokic’, it is unnecessary for the purposes of this appeal to determine why the Trial Chamber failed to comply with that direction. It is sufficient to say that the failure of the Trial Chamber to comply with the direction has led to an unfortunate and wholly unnecessary delay in reaching a proper conclusion in relation to the liberty of Blagojević.
With a clear finding that the Trial Chamber was refusing — in this instance — to apply the law as instructed by the Appeals Chamber, the Defence moved to disqualify the Trial Chamber on the basis of actual bias: if a trial judge was reluctant to apply the ICTY jurisprudence during the pre-trial stage of the proceedings, how could he be expected to do so during the trial. There was also the issue of accepting guaranties from the Bosniak (Muslim)/Croat entity, while rejecting to even consider a similar guarantee from the Serbian entity.
The disqualification was denied. The Bureau found that there is “a high threshold to reach in order to rebut the presumption of impartiality” and that the “Applicant ha[d] failed to rebut that presumption.” The Bureau found that “even when a Trial Chamber disregards an Appeals Chamber’s Decision, it would take a more extended pattern of decisions uniformly favouring one party before the Bureau could find that a reasonable observer could reasonably apprehend bias against the other party.” Go figure!
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 See Prosecutor v. Karemera et al, ICTR-98-44-AR15bis, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of the Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004 para. 2.
 Id., para. 67.
 Prosecutor v. Sesay et al., SCSL-04-15-T, Decision on Defence Motion Seeking the Disqualification of Judge Robertson from the Appeals Chamber, 28 January 2008, para. 2.
 Id., paras. 2, 4.
 Id., para. 15.
 Id., para. 16.
 Prosecutor v. Norman, et al., SCSL-2004-14PT, Motion to Recuse Judge Winter from Deliberating in the Preliminary Motion of the Recruitment of Child Soldiers, 24 March 2004.
 Prosecutor v. Norman, et al., SCSL-2004-14PT, Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers, 28 May 2004.
 Id., para. 5.
 Id., para. 28.
 Id., para. 31.
 Prosecutor v. Prlić et al., IT-04-74-T, Decision of the President on Jadranko Prlić’s Motion to Disqualify Judge Arpad Prandler, 16 September 2010, para. 1.
 Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Motion for Disqualification of Judge Prandler, 16 September 2010, para. 14.
 Id., para. 16.
 Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Request for Clarification and Full Disclosure of Judge Prandler’s Association with UN Civil Affairs Advsior in BiH & Request for a Public Hearing, Victor Andreev, 20 July 2010.
 Prosecutor v. Prlić et al., IT-04-74-T, Decision of the President on Jadranko Prlić’s Motion to Disqualify Judge Arpad Prandler, 16 September 2010, para. 6.
 Prosecutor v. Prlić et al., IT-04-74-T, Decision of the President on Jadranko Prlić’s Motion to Disqualify Judge Prandler, 4 October 2010, paras. 4, 5
 Id., para. 30.
 Compare Prosecutor v. Blagojević et al., IT-02-60-PT, Decision on Vidoje Blagojević’s and Dragan Obrenović’s Applications for Provisional Release, 22 July 2002 with Prosecutor v. Jokić, IT-01-42-PT, Order on Miodrag Jokić’s Motion for Provisional Release, 29 August 2003.
 Prosecutor v. Blagojević et al., IT-02-60-PT, Decision on Vidoje Blagojević’s and Dragan Obrenović’s Applications for Provisional Release, 22 July 2002, para. 50.
 Prosecutor v. Blagojević et al., IT-02-60-AR65, Decision on Provisional Release of Vidoje Blagojević and Dragan Obrenović, 3 October 2002, para. 6 (emphasis in original).
 Prosecutor v. Blagojević et al., IT-60-AR65.4, Decision on Provision Release Application by Blagojević, 17 February 2003, para. 14 (emphasis in bold added).
 Prosecutor v. Blagojević et al., IT-02-60-PT, Vidoje Blagojević’s Motion to Disqualify the Trial Chamber (Judges Schomburg, Mumba and Agius) on the Grounds of Actual Bias and an Unacceptable Appearance of Bias & Request for This Matter to be Referred to the Bureau for its Determination, 26 February 2003. See also Prosecutor v. Blagojević et al., IT-02-60-PT, Vidoje Blagojević’s Reply to Prosecution’s Reponse to Vidoje Blagojević’s Motion to Disqualify the Trial Chamber, 17 March 2003, para. 12(e).
 The Bureau is an administrative body composed of the President, the Vice-President and the Presiding Judges of the Trial Chambers. See ICTY Rules of Procedure and Evidence, Rule 23.
 Prosecutor v. Blagojević et al., IT-02-60-PT, Bureau Decision on Provisional Release of Vidoje Blagojević and Dragan Obrenović, 19 March 2003, para. 13.
 Id., para. 14.
 Id., para. 15.