Furundzija - Judgement - Declaration of Judge Patrick Robinson

XI. DECLARATION OF JUDGE PATRICK ROBINSON

1. This Declaration is not prompted by disagreement with the Chamber's Judgement; rather, its purpose is to comment on the question of a methodology and technique for the interpretation and application of the Tribunal's Statute and Rules.

2. In relation to the fourth ground of appeal, the provisions for interpretation and application are Articles 13 and 21 of the Statute and Rule 15(A), which provide:

Article 13

1. The judges 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.

...

Article 21

....

2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing . . .

Rule 15

(A) A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality. The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case.

3. Where the meaning of a provision is plain, no problem arises. But where the meaning is ambiguous, the methodology and technique in interpretation may be crucial and decisive. The meaning of Rule 15 is not plain. In such a case, it is important to ascertain whether there is a rule of customary international law that impacts upon the interpretation and application of the provision.

4. The Report of the Secretary-General¹ stresses the need for the Tribunal to apply rules of customary international law to determine the criminality of conduct so as to avoid conflict with the principle, nullum crimen sine lege. But the Tribunal would, in any event, be obliged to apply customary international law, since under Article 1 of the Statute, it is empowered to prosecute persons for serious violations of international humanitarian law, an integral component of which is customary international law.² The other component is, of course, conventional international law.

5. If there is in general a need to ascertain whether a rule of customary international law impacts on the interpretation of the Statute and Rules, it is all the more important to conduct that exercise in relation to the construction of those provisions which concern the fundamental rights of the accused,³ because over time, and particularly, in the post-war era, many such rules have developed, and now abound in that area.

6. If there is a relevant rule of customary international law, due account must be taken of it, for more than likely, it will control the interpretation and application of the particular provision. Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides that:

3. There shall be taken into account, together with the context:

...

(c) any relevant rules of international law applicable in the relations between the parties.⁴

7. Significantly, the paragraph "in the light of the general rules of international law in force at the time of its conclusion", which was in the International Law Commission's 1964 Draft Articles on the Law of Treaties, was amended by the deletion of the words "in force at the time of its conclusion" so as to take account of "the effect of an evolution of the law on an interpretation of legal terms in a treaty".⁵ Therefore, the relevant rule of international law need not have been in force at the time of the conclusion of the treaty being interpreted; it need only be in force at the time of the interpretation of the treaty.

8. If there is no relevant rule of customary international law, the relevant provision in the Statute or the Rules will be interpreted in accordance with the other elements of Article 31 of the Vienna Convention, that is, good faith, textuality, contextuality (note that the Vienna Convention treats relevant rules of international law in connection with the context) and teleology.

9. Three points need to be highlighted in relation to the interpretation of the Statute and Rules.

10. A relevant rule of customary international law does not necessarily control interpretation. For the Statute may itself derogate from customary international law, as it does in Article 29 by obliging States to co-operate with the Tribunal and to comply with requests and orders from the Tribunal for assistance in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.⁶ This derogation from the customary principle of sovereignty has been highlighted in the Blaskic Decision.⁷

11. Secondly, in interpreting the Statute and Rules due account must be taken of the influence of context and purpose on the ordinary meaning to be given to a particular provision. Contextual interpretation calls for account to be taken of the international character of the Tribunal, in contradistinction to national courts from whose jurisdictions many of the provisions in the Statute and Rules are drawn. However, contextual interpretation highlighting this difference should not be taken too far, at any rate, not so far as to nullify fundamental rights which an accused has under customary international law. Teleological interpretation calls for account to be taken of the fundamental purpose of the Statute, to ensure fair and expeditious trials of persons charged with violations of international humanitarian law so as to contribute to the restoration and maintenance of peace in the former Yugoslavia.⁸

12. Thirdly, in seeking to ascertain whether there is a relevant rule of customary international law, the Tribunal, being a court, albeit an international one, would no doubt be influenced by the decisions of other courts and tribunals. Decisions of national courts are, of course, not binding on the Tribunal. However, it is accepted that such decisions may, if they are sufficiently uniform, provide evidence of international custom.⁹ It is perfectly proper, therefore, to examine national decisions on a particular question in order to ascertain the existence of international custom. The Tribunal should not be shy to embark on this exercise, which need not involve an examination of decisions from every country. A global search, in the sense of an examination of the practice of every state, has never been a requirement in seeking to ascertain international custom, because what one is looking for is a sufficiently widespread practice of states accompanied by opinio juris.¹⁰

13. In ground four of this appeal, the Appellant challenges the impartiality of Judge Mumba. The impartiality of judges is required by Articles 13(1) and 21 of the Statute. It is beyond dispute that the impartiality of judges is a requirement of customary international law. The provisions in the Statute reflect this requirement. The Judgement does not highlight in explicit terms the customary character of this requirement. It is apparently taken for granted. The Chamber does, however, conclude that the "fundamental human right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial."¹¹

14. The Judgement cites provisions from other human rights instruments to support that conclusion.¹² I would have been more content with a specific identification of the customary character of the principle of judicial impartiality. Consequently, although that customary character is self-evident, I very much regret that the Chamber felt that it "need look no further than Article 13(1) of the Statute for the source of that requirement."¹³

15. However, the real issue raised by the ground of appeal is the significance of Rule 15, which seeks to give effect to the customary requirement of judicial impartiality. The question which the Chamber had to resolve was the standard to be employed in determining a breach of that customary requirement. In my view, the Chamber should have sought to ascertain whether any rule of customary international law had developed in relation to that standard.

16. Although the Judgement examines provisions in the European Convention on Human Rights, decisions of the European Court of Human Rights, decisions from some common law countries - the United Kingdom, Australia, South Africa and the United States¹⁴- and observes the "trend in civil law jurisdictions",¹⁵ it does not do so for the purpose of ascertaining whether there is any relevant rule of customary international law.

17. The finding which the Chamber makes based upon this examination, is that "there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias."¹⁶ That finding, however, was not sufficient to resolve the issues raised by the interpretation of Rule 15, for it left unanswered the further question as to the sub-standard or criterion to be employed for determining when, objectively, there is an appearance of bias. The Appeals Chamber considered that "the following principles should direct it in interpreting and applying the impartiality requirement of the Statute":¹⁷

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 cause, 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 from the case is automatic; or

ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.¹⁸

18. The Judgement, although not explicitly following the path that I would have wished it to take, has come very close to doing so, and, perhaps, may be understood by some as having done so.

19. The Chamber's examination of decisions of national courts and international tribunals is very much akin to the approach advocated in this Declaration, and could provide a sufficient foundation for a determination as to whether a rule of custom had emerged as to the standard for determining a breach of the customary requirement of impartiality. I arrive at this conclusion bearing in mind that a global search is not required to establish customary international law, and that the decisions of national courts cited reflect the position, not only in those countries, but in many others.

20. It would not be too bold to characterise the Chamber's finding - "that there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias"¹⁹ - as reflecting a customary standard for determining whether there is a breach of the principle of judicial impartiality.

21. This finding is consistent with the general principle that justice must not only be done, but that it must also be seen to be done.²⁰ It may be that there is implicit in the Chamber's characterisation of its finding as "a general rule" a recognition that it has a customary basis.

22. The question arises as to whether the principles which the Chamber draws from its finding of the general rule could be said to reflect customary international law. As to the first, that a judge is not impartial if actual bias is shown, there is no controversy, and I would characterise that principle as reflecting international custom. The real difficulty however is with the second, that is, where there is an unacceptable appearance of bias. Here, it would require some boldness to say that a customary rule has emerged, not in relation to the principle itself - an unacceptable appearance of bias - but, rather in relation to what constitutes, or the indicia of, an unacceptable appearance of bias, and more so, in relation to the second of those indicia - where the circumstances lead a reasonable observer, properly informed, to reasonably apprehend bias. But I agree, nonetheless, with the conclusion drawn by the Chamber that Rule 15 should be interpreted in the light of those indicia.

Done in both English and French, the English text being authoritative.

_____________________
Patrick Lipton Robinson

Dated this twenty-first day of July 2000
At The Hague,
The Netherlands.

[SEAL OF THE TRIBUNAL]

1 Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) S/25704 ("Report of the Secretary-General") para. 34.
2 The question of applicable law is explicitly dealt with, (and in a hierarchical manner), in Article 21 of the Statute establishing the International Criminal Court. See Rome Statute of the International Criminal Court, adopted at Rome on 17 July 1998, A/CONF.183/9. Although the Tribunal's Statute does not have such a provision, the regime of its applicable law would be roughly the same. Article 21(1)(b) of the Rome Statute provides that "the Court shall apply . . . in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict."
3 Article 21 of the Statute lists the rights of the accused; the list is not exhaustive. The accused is entitled to what the Secretary General calls the "internationally recognized standards." Report of the Secretary-General, para. 106.
4 The Tribunal has on several occasions had recourse to the general rule of interpretation in Article 31(1) of the Vienna Convention on the Law of Treaties for the purpose of interpreting the Statute. Article 31(1) provides that a treaty "shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." The Appeals Chamber has held that "Although the Statute is not a treaty, it is a sui generis international legal instrument resembling a treaty." Joseph Kanyabashi v. The Prosecutor, Case No. ICTR-96-15-A, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 15.
5 See paragraph 16 of the Commentary of the International Law Commission on Article 27 of the Draft Articles on the Law of Treaties, I.L.C.Y.B. (1966), Book IX, Vol. II, pp. 222.
6 Article 29(1) of the Statute.
7 Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, para. 26.
8 Report of the Secretary-General, para. 26.
9 Brownlie, Principles of Public International Law (5^th ed. 1998), p. 5. As Oppenheim comments: "Decisions of municipal courts . . . are not a source of law in the sense that they directly bind the state from whose courts they emanate. But the cumulative effect of uniform decisions of national courts is to afford evidence of international custom (although the weight to be attached to that evidence will vary with the status of the courts and the intrinsic merits of the decisions). Oppenheim's International Law, Vol. 1 (9^th ed., 1997), p. 41.
10 Article 38 of the Statute of the International Court of Justice requires the Court to apply "international custom, as evidence of a general practice accepted as law. . .".
11 This Judgement, para. 177.
12 Ibid., p. 54, n. 241.
13 Ibid., para. 177.
14 Ibid., paras. 181 - 187.
15 Ibid., para. 188.
16 Ibid., para. 189.
17 Ibid.
18 Ibid.
19 Ibid.
20 Lord Hewart CJ in R. v. Sussex Justices ex parte McCarthy [1924] 1 KB 256 at p. 259.