Decision of the Bureau on Motion to disqualify Judges pursuant to Rule 15 or in the Alternative that certain Judges recuse themselves

DECISION OF THE BUREAU

Before:
President Gabrielle Kirk McDonald
Vice-President Shahabuddeen
Judge Cassese, Presiding Judge of Trial Chamber II
Judge Jorda, Presiding Judge of Trial Chamber I
Judge May, Presiding Judge of Trial Chamber III

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
25 October 1999

PROSECUTOR

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

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DECISION OF THE BUREAU ON MOTION TO DISQUALIFY JUDGES PURSUANT TO RULE 15 OR IN THE ALTERNATIVE THAT CERTAIN JUDGES RECUSE THEMSELVES

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THE BUREAU 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, comprising President McDonald, Vice-President Shahabuddeen, Judge Cassese, Presiding Judge of Trial Chamber II, Judge Jorda, Presiding Judge of Trial Chamber I and Judge May, Presiding Judge of Trial Chamber III,

DECIDES as follows:

I. PROCEDURAL HISTORY

1. On 30 July 1999, a motion entitled "Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves" ("the Motion") was filed before the Appeals Chamber by all the accused except Zejnil Delalic in the matter of the Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo (IT-96-21-T, hereinafter referred to as "the Celebici case").

2. In this Motion, the appellants requested, pursuant to Rule 15 of the Rules of Procedure and Evidence, that all judges of the Tribunal who either participated in the plenary session which found that Judge Odio Benito’s nomination as Vice-President of Costa Rica would not be incompatible with service as a judge of the Tribunal or who took part in the plenary session after her election which approved her taking the oath of office as Vice-President of Costa Rica while remaining a judge of the Tribunal be disqualified from sitting on the Appeals Chamber in Celebici on the appeal against conviction or, in the alternative, that these judges recuse themselves. This request was set out by the appellants on the following grounds:

i. That Judge Odio Benito was not qualified to sit as a judge of the Tribunal after her inauguration as Vice-President of Costa Rica on the basis, inter alia, that Article 13(1) of the Statute requires that judges be eligible to serve on their nation’s highest court and Article 161 of the Constitution of Costa Rica disqualified her from sitting on her nation’s highest court;

ii. That although some doubt existed as to which of the other judges took part in the plenary sessions, all judges who were serving before November 1998 had already taken part in a decision related to the issue and consequently ought to be disqualified;

iii. That taken together, Rules 15(A), 15(C) and 15(D) suggest that a judge who has already expressed an opinion on a case or who has taken part in a portion of a case cannot sit on a subsequent part, on the grounds that his or her fairness and impartiality could otherwise reasonably be questioned;

iv. That the judges in plenary twice considered the issue of whether Judge Odio Benito could be a judge of the Tribunal while she was Vice-President of Costa Rica without giving notice to the appellants or giving them an opportunity to be heard on the matter; and

v. That there is nothing to indicate that the plenary was informed or that it gave due consideration to the issue of the interaction between Article 161 of the Constitution of Costa Rica and Article 13(1) of the Statute of the Tribunal.

3. On 10 August 1999, the Office of the Prosecutor filed a response entitled "Prosecution Response to Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves" ("Prosecution Response") whereupon the Prosecution submitted that the Motion should be rejected on the following grounds;

i. That the appellants had not made a sufficient showing to satisfy any of the grounds for disqualification of judges as provided for in Rule 15, as none of these exclusionary rules refer to plenary sessions or prevent the judges who sit in plenary sessions from sitting on any Trial Chambers or the Appeals Chamber;

ii. That the appellant’s claim that the fact that judges had previously considered an issue of law in a plenary session without notice to the affected appellants and giving them an opportunity to be heard cannot logically constitute grounds for dismissal, as it would mean that any judges who make substantive changes to the Rules of Procedure in plenary sessions could not preside in the cases which decide upon the implementation of these Rules and in any event, the appellants have no standing to be heard on issues considered during plenary sessions, which are intended to provide a forum for the judges to meet to perform particular functions in accordance with Rule 24;

iii. That there is nothing to suggest that the judges comprising the present Appeals Chamber who attended the plenary sessions concerning Judge Odio Benito’s nomination and appointment as Vice-President of Costa Rica might not be able to impartially consider this matter as part of appellate proceedings in the light of the submissions of the parties, as the judges in plenary dealt with this matter in accordance with their duties under Rule 24 and not in relation to any particular case;

iv. That even if plenary proceedings are considered to be previous "decisions" on the ability of Judge Odio-Benito to sit in cases, the matter can be re-considered by the Judges, as issues of fact and law are routinely considered by judges who, in their professionalism, are presumed to be able to objectively reconsider prior decisions; and

v. That the motion was not raised in a timely fashion.

4. On the 15^th and 17^th September 1999 respectively, the Appeals Chamber issued two decisions pertaining to the correct procedure for disposing of the Motion. On 15 September 1999, the Presiding Judge of the Appeals Chamber, Judge Hunt, issued a decision entitled "Referral of Application to the Bureau under Rule 15(B)" ("Referral"), in which the appellant’s application was remitted to the Bureau for consideration. On 17 September 1999, the Appeals Chamber issued a "Decision on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves" ("Decision") in which it disposed of the Motion on grounds of incompetence, holding that the subject matter of the Motion was not a matter for the consideration of the Appeals Chamber, that it was instead to be regarded as an application to the Presiding Judge pursuant to Rule 15(B) and noting in this regard the Appeals Chamber’s referral of the matter to the Bureau of 15 September 1999.

5. In memoranda accompanying the Referral, Judge Hunt set forth his view that there was no necessity for the judges in question to disqualify themselves or for them to be disqualified from hearing the Celebici appeal, on the following grounds:

i. That the deliberations of the Plenary were not, and were never intended to be, a determination of the rights of any party in the Celebici case as the determination of the rights of any party to proceedings before the Tribunal is not the function of a Plenary meeting of the judges of the Tribunal. In any event, views expressed at such a meeting could not bind the judges should the issue discussed arise later for determination in proceedings before the Tribunal, in the same way that it could not reasonably be argued that all the judges who discuss amendments to be made to the Rules of Procedure and Evidence at a Plenary meeting are thereby disqualified from subsequently determining the meaning of those rules when such an issue arises in proceedings before the Tribunal.

ii. That conferral with each of the judges in question in accordance with Rule 15(B) merely served to confirm that no factual basis existed to demonstrate that the judges should disqualify themselves on this matter.

II. DISCUSSION

(A) THE APPLICABLE LAW

6. The Bureau holds the view that a distinction must be drawn between two different issues: (i) that of the requirements for a person to serve as a Judge of the ICTY and the connected question of what conduct or situations are incompatible with the discharge of judicial functions, and (ii) the issue of the grounds of disqualification of a Judge from sitting in a particular case.

7. The first issue is regulated by Article 13 of the Statute of the International Tribunal. In paragraph 1, this Article provides, inter alia, that Judges must 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". Paragraph 4 of the same provision provides inter alia that the "terms and conditions of service shall be those of the judges of the International Court of Justice". This provision thus indirectly refers to Article 16 of the Statute of the International Court of Justice, which provides that "(1) No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature. (2) Any doubt on this point shall be settled by the decision of the Court". Thus, to serve as a judge of the ICTY a person elected by the General Assembly pursuant to Article 13(2) of the Statute must both possess the requirements set out in Article 13(1) and not exercise any political or administrative function or engage in any other occupation of a professional nature. In other words, both positive and negative requirements are prescribed by the relevant rules. That this is the regulation applicable to the issue in question has been confirmed both by a decision of the Fourth Plenary Meeting of the Judges of the ICTY and by the practice of the Tribunal.
In case of doubt or dispute on the question whether a Judge meets the requirements at issue, in particular the negative requirements just mentioned, it is for the President to seek to resolve the matter in conference with the Judge. Either at the request of the Judge concerned or proprio motu, the President may submit the question to the plenary assembly of the Judges, which, in the exercise of its administrative functions, passes on the matter.

8. The issue of disqualification of Judges is different. A Judge may recuse himself or herself or be disqualified from hearing a particular case when, pursuant to Rule 15(A), he or she "has a personal interest [in] [...] or has or has had any association" with the case "which might affect his or her impartiality". Pursuant to Rule 15(B), decisions on this matter, at the request of any party to the case, are made by the Presiding Judge of a Chamber or, at the request of the Presiding Judge, by the Bureau.

9. The two issues set out so far are different. The first issue relates to the question of whether or not a Judge possesses all the necessary requirements for serving as a Judge of the Tribunal. This is a matter of an administrative nature, internal to the Tribunal. It can only be settled by the relevant bodies of the Tribunal. If these bodies are satisfied that the Judge does not fulfil one of the requisite conditions, for instance because he or she has engaged in political or administrative functions incompatible with the judicial function, the Judge is duty bound either to abandon those incompatible functions or to resign from the position of Judge.
By contrast, the other issue is a judicial matter, which may be raised not only by the Judge concerned but also by any party to the proceedings before a Trial Chamber or the Appeals Chamber. It relates to the right of a Judge to sit in a specific case. If the Judge does not fulfil the requirements referred to in Rule 15(B), he or she is disqualified from hearing that particular case, although he or she is fully entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases.

10. Of course, there may be some overlap between the two issues. This may happen when a party to a trial or appellate proceedings claims that the fact that a Judge sitting in that case has engaged in political, administrative or professional activities entails the consequence that this Judge has a "personal interest" in the case or has some "association" with the case causing the Judge to be biased and hence to lack the required impartiality. Clearly, in this case the party raising the issue of disqualification must show that the alleged incompatibilities with the judicial function are such as to bring about a lack of impartiality in the case at issue. In other words, that party must show a link between the activity allegedly incompatible with the judicial function and the particular case at issue. It would not be sufficient for that party to claim merely that the Judge in question is exercising a political, administrative or professional activity incompatible with his or her judicial functions. This is an administrative matter reserved to the Judges for any decision. As stated above, it is only for the President or the Plenary assembly of Judges to pass on this matter. If, instead, it can be shown that the activity incompatible with the discharge of judicial functions has a direct and specific impact upon the impartiality of a Judge in a particular case before a Chamber, then the matter comes within the purview of the disqualification procedure. In that case, it is to be settled pursuant to Sub-Rule 15(B).

(B) THE CASE AT ISSUE

11. In this case, as stated above, the three appellants against conviction claim that Judges Riad, Wang and Nieto-Navia should be disqualified from hearing the appeal against conviction. The basis for their disqualification is said to be as follows: One of the grounds of appeal relates to the proper constitution of the Trial Chamber in Celebici; in the appellants’ view the Chamber was not properly constituted because Judge Odio Benito, by her election as Vice-President of Costa Rica, became disqualified from serving as a Judge and sitting in Celebici and her impartiality could be apprehended as having been compromised. As in Plenary meetings of the Tribunal the three aforementioned Judges pronounced on the question of whether Judge Odio Benito could serve as a Judge after her election to the position of Vice-President of Costa Rica, they have allegedly formed a prejudgement upon one of the issues to be determined in the appeal.

12. It must be noted that the question of whether the position of Vice-President of Costa Rica was compatible with the discharge of the judicial functions by Judge Odio Benito was raised, at the administrative level, by the then President Cassese on 23 May 1997, in a meeting with Judge Odio Benito, when it became known that she was running as a candidate for that position. Judge Odio Benito responded to President Cassese in a letter of 16 October 1997 in which she specified that, if elected, she would not take office before the end of her functions as a Judge sitting in Celebici and in addition undertook, if elected, to fulfil her judicial functions on a full time basis. In the light of this commitment, the then President Cassese decided that Judge Odio Benito was entitled to run as a candidate for the position of Vice-President. Nevertheless, he felt that it was advisable to submit the matter to the Plenary. This was done in October 1997. The Fourteenth Plenary assembly of all Judges, in the discharge of administrative functions, endorsed the decision of the President.
The matter arose again in March 1998, after the election, on 1 February 1998, of Judge Odio Benito to the position of Second Vice-President of Costa Rica. President McDonald noted the renewed commitment of Judge Odio Benito not to assume the functions of Second Vice-President nor, in case of permanent or temporary absence of the President or the First Vice-President, the functions of President of Costa Rica, prior to the termination of her tenure as a Judge. Judge Odio Benito further undertook not to be diverted by anything from the fulfilment of her mandate as a Judge until November 1998. In light of these commitments, President McDonald decided that there was no incompatibility between Judge Odio Benito’s judicial duties and her new status of Second Vice-President of Costa Rica. President McDonald too felt it was advisable to submit the matter to the Seventeenth Plenary. This was done on 11 March 1998. The Plenary assembly of Judges, again exercising its administrative functions, unanimously endorsed President McDonald’s decision.

13. It should be emphasised that (i) the Judges assembled at the Fourteenth and Seventeenth Plenary Meetings only passed on the administrative issue of whether or not the election of Judge Odio Benito to the position of Second Vice-President of Costa Rica amounted to a circumstance incompatible with her judicial functions and (ii) this decision was not made with reference to any specific question as to whether Judge Odio Benito was disqualified from sitting in Celebici. Actually, it was only on 25 May 1998, namely more than two months after the administrative decision by the Seventeenth Plenary, that a motion was filed by defence counsel in Celebici asking that Judge Odio Benito take no further part in the proceedings in that case.

14. It follows from the above that the three Judges concerned by the Motion for disqualification currently under discussion took part only in the administrative decision made on 11 March 1998 concerning the general question of whether, pursuant to Article 13 of the Statute of the ICTY and Article 16 of the Statute of the International Court of Justice, Judge Odio Benito was entitled to continue to exercise her functions as a Judge of the International Tribunal. They did not pronounce upon, nor did they contribute to the taking of, any judicial decision on a specific judicial matter that at the time had not yet arisen: the question of whether Judge Odio Benito should be disqualified from sitting in Celebici on the basis that her election to the position of Second Vice-President of Costa Rica entailed an interest in or an association with that case, thus creating a lack of impartiality. This question, raised in the Defence Motion of 25 May 1998, was decided by the Bureau, on which none of the three aforementioned Judges was serving, in its decision of 4 September 1998.

15. In light of the above, the Bureau holds the view that the fulfilment by a Judge of his or her duty to take part in a collegiate decision of an administrative nature on the administrative issue discussed so far cannot amount to a ground for subsequently disqualifying such a judge, sitting in the Appeals Chamber, from discharging a judicial function (i.e., pronouncing upon the question, raised by the three appellants in their appeal against conviction, of whether Judge Odio Benito, by her election as Second Vice-President of Costa Rica, became disqualified from sitting in Celebici and whether her impartiality could in any event be perceived as having been compromised).

16. The Bureau therefore considers that the appellants have failed to satisfy the requirements set out in Sub-Rule 15(A). In particular, they have failed to show that Judges Riad, Wang and Nieto-Navia have a personal interest in the question of whether Judge Odio Benito was entitled to sit in Celebici or have any association with this question which might affect their impartiality.

17. For these reasons, the Bureau unanimously decides that Judges Riad, Wang and Nieto-Navia are not disqualified under Sub-Rule 15(A) of the Rules of Procedure and Evidence from sitting on the appellate proceedings in Celebici.

III. DISPOSITION

18. The Bureau unanimously decides, under Sub-Rule 15(B) of the Rules, that Judges Riad, Wang and Nieto-Navia are not disqualified from serving on the Appeals Chamber to hear the appeal against conviction in Celebici.

__________________________
Gabrielle Kirk McDonald
President

Dated this 25^th day of October 1999
At The Hague
The Netherlands

Judge Shahabuddeen appends a Declaration to this Decision.

[Seal of the Tribunal]