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a) Contempt proceedings

i) Tribunal possesses “inherent jurisdiction” to deal with contempt

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), January 31, 2000, para. 13, 14, 26: Contempt proceedings were brought against Milan Vujin, former counsel for Dusko Tadic.  In resolving the issue, the Appeals Chamber discussed where the ICTY finds its authority to deal with contempt proceedings and to punish those individuals it finds guilty of contempt.  The Appeals Chamber held that although “[t]here is no mention in the Tribunal’s Statute of its power to deal with contempt” it does “however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded.”  This “inherent jurisdiction” “is adequately encompassed by the wording . . . in Rule 77.”

ii) contempt imposed for putting forward a case known to be false in material respects and manipulating witnesses

Tadic, (Appeals Chamber), January 31, 2000, para. 134, 160, 166, 167, 174: In finding Milan Vujin, Dusko Tadic’s former counsel, in contempt, the Appeals Chamber held that Vujin “put forward a case . . . that he knew to be false in material respects” and that he “manipulated Witnesses A and B by seeking to avoid any identification by them in statements of their evidence of persons who may have been responsible for the crimes for which Tadic had been convicted.”  The Appeals Chamber held the contempt to be “serious” because Vujin’s “conduct ha[d] been against the interests of his client,” which “strikes at the very heart of the criminal justice system.”  The Appeals Chamber ordered Vujin “to pay a fine of Dfl 15,000 to the Registry of the Tribunal” and directed the Registrar “to consider striking” his name “off the list of assigned counsel” and report “his conduct . . . to the professional body to which he belongs.”  Vujin appealed this judgment and on February 27, 2001, the Appeals Chamber dismissed his appeal and affirmed the Appeals Chamber’s judgment in first instance.  On June 8, 2001, the Registrar ordered Vujin’s name to be withdrawn from the list of assigned counsel. 

b) Impartiality of judges

i) two-pronged test for judicial bias

Furundzija, (Appeals Chamber), July 21, 2000, para. 189-190: “[T]here 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.  [T]he Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute: 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 from the case is automatic; or ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”  “In terms of the second branch of the second principle, the Appeals Chamber adopts the approach that the ‘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.’”

ii) high threshold required to rebut the presumption of impartiality

Furundzija, (Appeals Chamber), July 21, 2000, para. 197: “[I]n the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal ‘can disabuse their minds of any irrelevant personal beliefs or predispositions.’  It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that [the judge] was not impartial in his case.  There is a high threshold to reach in order to rebut the presumption of impartiality.  ‘[D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be firmly established.’”

iii) qualifications that play an integral role in satisfying eligibility requirements do not, in the absence of the clearest contrary evidence, show bias or impartiality

Furundzija, (Appeals Chamber), July 21, 2000, para. 205: “The Appeals Chamber does not consider that a Judge should be disqualified because of qualifications he or she possesses which, by their very nature, play an integral role in satisfying the eligibility requirements.”  “Article 13(1) should be read to exclude from the category of matters or activities which could indicate bias, experience in the specific areas identified.  In other words, the possession of experience in any of those areas by a Judge cannot, in the absence of the clearest contrary evidence, constitute evidence of bias or partiality.”

iv) application

(1) Judge Mumba’s acting as a representative on the United Nations Commission on the Status of Women not grounds for disqualification

Furundzija, (Appeals Chamber), July 21, 2000, para. 200-202: In evaluating whether Judge Mumba’s acting as a representative of her country on the United Nations Commission on the Status of Women (UNCSW) was grounds for disqualification regarding a case involving rape, the Appeals Chamber stated: “even if it were established that Judge Mumba expressly shared the goals and objectives of the UNCSW . . . in promoting and protecting the human rights of women, that inclination . . . is distinguishable from an inclination to implement those goals and objectives as a Judge in a particular case.  It follows that she could still sit on a case and impartially decide upon issues affecting women.  [E]ven if Judge Mumba sought to implement the relevant objectives of the UNCSW, those goals merely reflected the objectives of the United Nations, and were contemplated by the Security Council resolutions leading to the establishment of the Tribunal.”  “‘Concern for the achievement of equality for women, which is one of the principles reflected in the United Nations Charter, cannot be taken to suggest any form of pre-judgement in any future trial for rape.’  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.”

(2) Judge Benito’s membership on the Board of Trustees of the United Nations Voluntary Fund for the Relief of Victims of Torture not grounds for disqualification

Mucic et al., (Appeals Chamber), February 20, 2001, para. 697-699, 707: In dismissing the defendants’ appeal that Trial Judge Odio Benito should be disqualified because of her membership on the Board of Trustees of the United Nations Voluntary Fund for the Relief of Victims of Torture, the Appeals Chamber stated: “[t]he relevant question to be determined . . . is . . . whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that Judge Odio Benito might not bring an impartial and unprejudiced mind to the issues arising in the case.  The apprehension of bias must be a reasonable one.  Such circumstances within the knowledge of the fair-minded observer would include the traditions of integrity and impartiality which a judge undertakes to uphold in the solemn declaration made when assuming office, that he or she will perform the duties and exercise the powers of such an office ‘honourably, faithfully, impartially and conscientiously.’  [B]y accepting a position on the Board of Trustees, Judge Odio Benito undertook in her personal capacity to further the mandate of the Victims of Torture Fund. . . . As noted in the Furundzija Appeal Judgement, personal convictions and opinions of judges are not in themselves a basis for inferring a lack of impartiality.  The Appeals Chamber has already emphasised that, as there is a high threshold to reach in order to rebut the presumption of impartiality and before a judge is disqualified, the reasonable apprehension of bias must be ‘firmly established.’  The reason for this high threshold is that, just as any real appearance of bias of the part of a judge undermines confidence in the administration of justice, it would be as much of a potential threat to the interests of the impartial and fair administration of justice if judges were to disqualify themselves on the basis of unfounded and unsupported allegations of apparent bias.”

v) Judges not disqualified from hearing two or more trials arising out of the same series of events

Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2 (Bureau Decision), May 4, 1998, & (Trial Chamber), May 21, 1998: “[I]t is a fundamental right of all persons facing criminal charges to be tried before an independent and impartial tribunal.  [T]he Tribunal is guided by the principle that the requirement of impartiality prohibits not only actual bias or prejudice, but also the appearance of partiality.  Thus, where the circumstances create a reasonable or legitimate suspicion of prejudice, there may be a basis for disqualification though in fact no actual bias or prejudice exists.  However . . . it does not follow that a judge is disqualified from hearing two or more criminal trials arising out [of] the same series of events, where he is exposed to evidence relating to these events in both cases.  A judge is presumed to be impartial.  The nature of the Tribunal’s jurisdiction is such that the cases before it inevitably overlap.  On the one hand, the same issues and the same evidence are often involved.  On the other hand, the Tribunal possesses a finite number of judges.”


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February 2004