This is the eighth, and final 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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H. The Obligations of Defence Counsel in exercising due diligence
Lastly, I discussed obligations that also lie with Defence counsel. Indeed, Defence counsel have to be diligent to raise disqualifications early in the proceedings and to the right authority. I put the accent on how important is to make the record. I used the Čelebići case as an example in which the issue was whether a Judge was fit to be a Judge.
ICTY Prosecutor v. Delalić et al. (Čelebići), The Case of the sleeping Judge, and the Defence’s failure to raise
In Čelebići, Judge Karibi-Whyte was sleeping during substantial portions the trial proceedings. Defence counsel for Landžo did not formally raise this issue before the Trial Chamber but filed this issue as a ground of appeal. Counsel for Landžo explained the failure to raise this issue during trial proceedings stating that she had approached “this sensitive issue in the most diplomatic way possible.” Indeed, Counsel for Landžo had first raised the issue with the Registrar and President of the ICTY Judge Cassese rather than in court:
Judge Karibi-Whyte along with the other two Judges was the fact finder in the trial. He would be determining the guilt and/or innocence, and he would be determining the amount of sentence to be imposed. Direct confrontation with the fact finder at this point in the trial would have benefited my client. Approaching the Registry and the President of the Tribunal regarding these issues was the direction that I considered most prudent at this juncture in the trial.
Then, Counsel for Landžo attempted to resign under protest because of “the sleeping of the Judge and the total disrespect by the Presiding Judge for all those attempting to perform their duties during the trial.” The Appeals Chamber noted her course of actions:
She says that she met with the Registrar, who persuaded her not to resign and who arranged a meeting with President Cassese. President Cassese had assured her that he ‘would attend to the matter’. She had thereafter continued to discuss the ‘continuing problem’ with the Senior Legal Officer of the Trial Chamber.
Counsel argued that to make a complaint to the Trial Chamber itself would have been “inappropriate and futile,” and argued that in pursuing this alternative course, that she acted “in the highest traditions of the Bar.” The Appeals Chamber firmly disagreed. The record had not been made when necessary, that is to say during the Trial proceedings when the facts effectively occurred and the legal issue arose. The Appeals Chamber stated “the matter must be raised with the court at the time the problem is perceived in order to enable the problem to be remedied.” The Appeals Chamber was uncharitable in its findings, with little acknowledgement of the sincere, albeit ineffectual, efforts of Defence counsel to raise a sensitive matter using an approach that at least in a national court would have been deemed measured, if not laudable:
The Appeals Chamber does not agree. Such an approach fails to recognise that raising the issue before the Trial Chamber is indispensable to the grant of fair and appropriate relief. Moreover, it clearly could be anticipated that, by taking her complaint to the President, it would necessarily be made known to Judge Karibi-Whyte. The issue was, indeed, made known to him. The ‘highest traditions of the Bar’ require counsel to be considerably more robust on behalf of their client in such circumstances as these than counsel for Landžo was in this case. Co-counsel for Landžo on the appeal referred – for a somewhat different purpose – to his need in the present case to make his submissions on this and other grounds of appeal ‘in a somewhat more direct manner to the court – respectful, but direct’, which he proceeded to do in a robust, but entirely appropriate, manner. Any counsel of experience will have had the embarrassing duty at some stage of his or her career of saying something unpleasant to a judge. Counsel for Landžo herself did not flinch from making very serious (although completely baseless) allegations of impropriety against the Appeals Chamber concerning the compilation of the Extracts Tapes in a filing prior to the hearing of the appeal.
The lecture focused on judicial ethics from the defence perspective. One may have high expectations of international “professional” judges in rendering international criminal justice. The common perception is that, if you place the word “international” in front of something, it is held to a higher standard. However, the actual standard of impartiality and fairness in the administration of justice in the international context can be quite low when compared to the administration of justice in national jurisdictions. Full impartiality and integrity from the judges in international criminal tribunals, particularly when many of them lacked any judicial experience before being sworn in as judges, should not be accepted as an article of faith. Vigilance is required. In ensuring the Suspect or Accused’s fair trial rights, Defence lawyers must make applications for disqualifications when necessary. The examples shown were a mere sampling. Perhaps there is a real need for a detailed code of ethics for judges and prosecutors appearing before international tribunals. Additionally, there definitely seems to be a need for the adoption of a judicial training program for all judges to undergo before being sworn in (and deemed independent and thus not subject to any sort of training). This may have some added residual value, such as bringing greater uniformity and consistency to the trial proceedings, criteria indispensable for any judiciary, though often lacking in international criminal tribunals.
The application of these ethical principles center around the Furundžija test: whether a reasonable observer, properly informed would apprehend bias. Not every dubious association, communication, or conduct will call for the disqualification of a judge. For instance, it probably was not appropriate to seek Judge Eboe-Osuji’s disqualification solely for the basis of his nationality. A reasonable observer, reasonably informed, would not likely come to the conclusion that Judge Eboe-Osuji would be biased solely on his common nationality with the victims. When confronted with a potential case of judicial bias, counsel should seek more information concerning the circumstances. Going “nuclear” with a disqualification motion should not be the first option. You must be able to show that the conduct or pattern of conduct produces an unreasonable appearance of bias. That said, counsel should never shy away from making an application for disqualification when the available facts would lead a reasonable observer, properly informed, to apprehend bias. And a record must be made if error is to be preserved for appellate review. This is not only for the client to which counsel has an abiding duty of due diligence, but also for the integrity of the tribunal and the maintenance of fair trial rights and the proper administration of justice for all.
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 Prosecutor v. Delalić et al., IT-96-21-A, Judgment of the Appeals Chamber, 20 February 2001, paras. 214–26.
 Id., para. 642.
 Id., para. 643, quoting Affidavit of Cynthia McMurrey Sinatra, sworn 20 Apr 2000 at 1, annexure to Appellant Esad Landžo’s List of Witnesses on Appeal, Submission of Witness Statements and Motion for Issuance of Subpoena Ad Testificandum, 15 May 2000 (“Affidavit of 20 April 2000”). Affidavit of 20 April 2000, at 1–2. The document in fact entitled “Resignation Under Protest” is described in the affidavit as a Motion for Withdrawal.
 Prosecutor v. Delalić et al., IT-96-21-A, Judgment of the Appeals Chamber, 20 February 2001, para. 643.
 Id., para. 644.
 Id., para. 645.