On 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. Some 45 interns and other court staff attended. Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris. My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.
Through a series of blog posts I will review and expand upon the lecture. The complete document is available on my website.
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I. INTRODUCTION
The lecture explored (in general terms due to time constraints) the jurisprudence of the international tribunals, giving practical advice on what to do when a potential instance of bias may affect a client. The step-by-step process, if you will. Because occasionally there is an insufficient amount of on-record evidence to support a challenge, I shared my thoughts on setting up a challenge for disqualification by drawing out the dubious conduct or insidious evidence needed for a credible challenge.
In short, my lecture was about highlighting some of the inequities and hypocrisy defence lawyers face when making challenges of judicial bias, perceived or otherwise; how foolhardy it is to make specious claims that fail to meet the well-established criteria in showing bias due to a lack of impartiality or independence; why it is important for defence lawyers to make timely objections, move for disqualification when deemed necessary and reasonable; and the importance of perfecting the trial record in order to preserve errors for appeal.
The lecture centered on Furundžija,[1] the seminal case at the ICTY, which set the criteria in determining the bases for judicial disqualification, applied by the various international criminal tribunals and hybrid courts. It is worth noting that although Furundžija set the criteria for international tribunals, the rule was hardly novel in July of 2000.[2]
The Furundžija Appeals Chamber held that:
[A] Judge should be not only subjectively free from bias but also there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias….
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 is automatic; or
ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]
[A] 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]
The issue in Furundžija was whether the accused’s conviction should be vacated because of an appearance of bias on the part of Judge Florence Mumba, due to her prior involvement with the United Nations Commission on the Status of Women (UNCSW). One of the main concerns was Judge Mumba’s membership in the UNCSW, even if she was not a member of the UNCSW while serving as a Judge at the ICTY – cases involving mass and systematic rape and sexual violence have come before the ICTY – a topic of special concern advocated by the UNCSW.[5] The Defence argued that due to Judge Mumba’s personal interest, she should be disqualified based on the test that “a reasonable member of the public, knowing all of the facts [would] come to the conclusion that Judge Mumba has or had any associations, which might affect her impartiality.”[6] In this regard, the Defence submitted that:
Judge Mumba should have been disqualified as an appearance was created that she had sat in judgment in a case that could advance and in fact did advance a legal and political agenda which she helped to create whilst a member of the UNCSW.[7]
The Defence did not argue that Judge Mumba was actually biased but that a “reasonable person could have an apprehension as to her impartiality.”[8] The Appeals Chamber rejected this argument, inter alia, because the UNCSW’s relevant objectives are shared by the UN and “to endorse the view that rape as a crime is abhorrent and that those responsible for it should be prosecuted within the constraints of the law cannot in itself constitute grounds for disqualification.”[9] The Appeals Chamber considered that Judge Mumba’s involvement with the UNCSW and, in general, her previous experience in this area are relevant to the requirement under Article 13(1) of the ICTY’s Statute for experience in international law, including human rights law.[10] This was the first case in which the Appeals Chamber had to determine how to interpret the requirement of impartiality under Article 13(1) of the ICTY Statute.[11] The Furundžija criteria emerged as the standard for judicial disqualification for lack of independence or impartiality.
II. OPENING CASES—SETTING THE STAGE
I began the lecture by quoting a few passages from ICC Judge Chile Eboe-Osuji’s response to a motion for his disqualification, based on the allegations made by the Defence counsel in Prosecutor v. Banda & Jerbo that Judge Eboe-Osuji could not be fair and impartial because of his Nigerian nationality, which was common to the victims.[12] The Defence asserted that “[a]ny reasonable observer would expect that the natural sympathies of a judge towards fallen victims from his or her own country, who had sacrificed their lives in a mission they undoubtedly believed would serve the cause of peace, would make that judge more likely than one from a neutral country to find those who participated in this attack criminally responsible.”[13]
Judge Eboe-Osuji, as was his right,[14] elegantly dispensed with the claims of perceived bias in his response, Memorandum concerning ‘Defence Motion for Disqualification of a Judge.’[15] Judge Eboe-Osuji dramatically opened his retort to recuse or not to recuse with a quote from a Canadian Supreme Court Decision:
Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realisation of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfillment of a life’s dreams. It is never taken lightly, […] Courts have rightly recognized that there is a presumption that judges will carry out their oath of office, […] This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something that the judge has done gives rise to a reasonable apprehension of bias.[16]
Judge Eboe-Osuji went on to state:
As a preliminary matter, I should observe that, taking the motion as asking questions, it is perfectly understandable that learned counsel, from their own subjective corner, may want to ask whether an ICC judge should sit in a case in which the victims of the conduct under inquiry share a nationality with the judge. Viewed from that subjective perspective, it is arguable that the question is one that counsel owe their clients the duty to ask in good faith—since it has occurred to them to ask it. I respect the question and treat it with dignity. I do not presume that counsel were acting in bad faith in asking it. This is notwithstanding that challenges of bias against a judge are really questions about ‘judicial integrity’ concerning ‘not simply the personal integrity of the judge, but the integrity of the entire administration of justice,’ as Justice Cory had observed at the Supreme Court of Canada. In accepting counsel’s statement, as I do, that their intention is not to attack my integrity, I must assume that counsel were unaware of such eminent observations on the matter as that conveyed by Justice Cory.[17]
A few paragraphs later, Judge Eboe-Osuji deftly articulated a judge’s duties and obligation in stepping down or in resisting to step down when his or her independence and / or impartiality is called into question, explicitly using language from Furundžija.
From my own past experience as an advocate representing parties in cases, I must acknowledge the anxiety of counsel to keep the Bench perfectly pure in impartiality. Hence, every act and word that counsel see as out of place in a judge runs the risk of provoking fear of bias. Many a time, these bouts of fear result in motions for recusal. [I do not recall ever making one, though I had suspected it once or twice; but managed to keep my thoughts to myself] But, these motions have become truly unexceptional in their frequency in international criminal practice. At the ICTR and ICTY, open allegations of bias have been made against more judges than not, unconcerned that such a challenge to judicial impartiality ‘is a serious step that should not be undertaken lightly.’ It is only a matter of time before that epidemic makes its way to the ICC. [18]
It is, however, important always to keep in mind that the law does not appraise fear of judicial bias exclusively from the lens of the complaining counsel. In this connection, it has been correctly observed that, ‘in considering whether there was a legitimate reason to fear that a judge lacks impartiality, the standpoint of the accused is important but not decisive. ‘What is decisive is whether this fear can be held objectively justified.’’[19]
This brings us to the yardstick against which complaints of judicial bias must be assessed. In that regard, we must recall this settled point of law. The correct test for recusal of a judge is whether the fair-minded and informed observer, having considered all the facts and all the circumstances, would consider that there was a real danger of bias.[20]
Unstintingly recognizing that it is in the finest tradition of the Bar to make applications for disqualification when perceived to be warranted, Judge Eboe-Osuji cogently underscored the need to meet not only the subjective prong of the Furundžija criteria, but also — and this is the more difficult one — the objective prong.
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Next, examination of the Harhoff matter.
[1] Prosecutor v. Furundžija, IT-95-17/1, Appeal Judgment, 21 July 2000 (“Furundžija Appeal Judgment”).
[2] See In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942, 1955 U.S. LEXIS 807 (U.S. 1955): “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that ‘every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.’ Tumey v. Ohio, 273 U.S. 510, 532. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U.S. 11, 14.”
[3] Id., para. 189.
[4] Id., para. 190.
[5] Id., para. 166.
[6] Id., para. 169.
[7] Id.
[8] Id., para. 170.
[9] Id., paras. 201-02.
[10] Id., para. 205.
[11] Id., paras. 177–78.
[12] Prosecutor v. Banda Abakaer Nourain & Jerbo Jamus, ICC-02/05-03/09, Defence Request for the Disqualification of a Judge, 2 April 2012.
[13] Id., para. 15.
[14] Rome Statute of the International Criminal Court as corrected by the procés-verbaux of 16 January 2002, Article 41(2)(c): “Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision.”
[15] Prosecutor v. Banda Abakaer Nourain & Jerbo Jamus, ICC-02/05-03/09, Judge Eboe-Osuji’s Memorandum concerning ‘Defence Motion for Disqualification of a judge,’ Annex 2, 16 April 2012.
[16] Id., para. 1 citing RDS v R [1997] 3 SCR 484, paras. 116 and 117 [Supreme Court of Canada].
[17] Prosecutor v. Banda Abakaer Nourain & Jerbo Jamus, ICC-02/05-03/09, Judge Eboe-Osuji’s Memorandum concerning ‘Defence Motion for Disqualification of a judge,’ Annex 2, 16 April 2012, para. 8.
[18] Id., para. 25.
[19] Id., para. 26.
[20] Id., para. 27 (emphasis added).
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