45. Following the Judgement of the ICTY Appeals Chamber in the case of Prosecutor v. Furundžija, the Appeals Chamber held in Akayesu that “there is a presumption of impartiality that attaches to a Judge or a Tribunal and, consequently, partiality must be established on the basis of adequate and reliable evidence.”[1] On appeal, it is for the appealing party to rebut this presumption of impartiality. As stated in Furundžija in respect of a reasonable apprehension of bias, the Appellant bears the burden of adducing sufficient evidence to satisfy the Appeals Chamber that the Judges were not impartial.[2] In Furundžija the ICTY Appeals Chamber held that there is “a high threshold to reach in order to rebut the presumption of impartiality” and recalled that “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established’”.[3] The Appeals Chamber recently confirmed this position in the Judgement in the case of Rutaganda v. Prosecutor.[4]

8. The Appeals Chamber notes that the Trial Chamber reasoned that Rule 15 of the Rules “applies expressly to [J]udges and does not contemplate the disqualification of [C]hamber’s legal officers or consultants”.[1] The Trial Chamber further considered that the disqualification of Chambers’ legal officers or consultants finds no support in the jurisprudence of the Tribunal.[2] In reaching this conclusion, the Trial Chamber also referred to a report from a Panel of the ICTY which had been appointed to provide an opinion on disqualification of Judges and legal staff in connection with a contempt case before the ICTY.[3] The Trial Chamber noted that in the Hartmann Report, the ICTY Panel stated that a plain reading of Rule 15 of the ICTY Rules of Procedure and Evidence, which is similar to Rule 15 of the Rules, shows that it applies solely to Judges and does not extend to Chambers’ staff, and that the conduct of legal officers is not relevant to determining a Judge’s impartiality.[4] The Trial Chamber concluded that it did “not consider that Rule 15 [of the Rules] may be extended to apply to Chambers legal officers or legal consultants”.[5] The Appeals Chamber considers that it was open to the Trial Chamber to rely on the ICTY Panel’s reasoning on this issue and, accordingly, finds no discernible error in the Trial Chamber’s reasoning in this respect.

9. The Appeals Chamber further notes that the submissions of Mr. Bicamumpaka and Mr. Mugiraneza are premised on the erroneous notion that legal officers or consultants play a central role in the Judges’ deliberations. Judicial decision-making is the sole purview of the Judges and legal officers and consultants play no role in it. Rather, they merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[6] Accordingly, there is no merit in Mr. Bicamumpaka’s and Mr. Mugiraneza’s assertions that legal officers and consultants must be subject to the same standards of impartiality as the Judges of the Tribunal.

10. The Appeals Chamber recalls that in the Furundžija case, the ICTY Appeals Chamber held that there is a “presumption of impartiality” which attaches to a Judge,[7] and that “… in 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’”.[8] Thus, “[t]here is a high threshold to reach in order to rebut the presumption of impartiality”.[9] The Appeals Chamber considers that it follows from this presumption that mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves, to warrant disqualification of a legal officer or consultant.

11. The Appeals Chamber is not persuaded that the Trial Chamber committed a discernible error and thereby abused its discretion in finding that Rule 15(A) of the Rules does not apply to legal officers and consultants. […] In some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial. However, the present case falls far short of such a situation. […]

10. Rule 15(B) of the Rules prescribes a two-stage process for making a request to disqualify a Judge which consists of (i) an application to the Presiding Judge of the Trial Chamber seized with the proceedings, and (ii) a de novo determination by the Bureau.[1] The Appeals Chamber’s consideration of matters relating to disqualification is limited to an appeal on the merits of the case or, as here, where the issue properly arises in an interlocutory appeal certified by the Trial Chamber.[2]

583. [T]here is no reference to any defence of diminished mental responsibility in the Tribunal’s Statute.  The description of diminished mental responsibility as a “special defence” in Rule 67(A)(ii) is insufficient to constitute it as such.  The rule-making powers of the judges are defined by Article 15 of the Tribunal’s Statute, which gives power to the judges to adopt only –

[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.[1]

The Appeals Chamber has held that this power does not permit rules to be adopted which constitute new offences, but only rules of procedure and evidence for the conduct of matters falling within the jurisdiction of the Tribunal.[2]  It follows that there is, therefore, no power to adopt rules which constitute new defences.  If there is a “special defence” of diminished responsibility known to international law, it must be found in the usual sources of international law – in this case, in the absence of reference to such a defence in established customary or conventional law, in the general principles of law recognised by all nations.[3]

625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research.  Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems.  The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy.[1]  The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.[2]

626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep.[3]  […]

[…]

630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party.[4]  In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted[5] – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed.  However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing.[6]  If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way.  The complaining party must prove the relevant prejudice by clear evidence.[7]  Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.[8]

631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put.[9]  Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings.[10]  The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established.  Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.[11]

632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense.  It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given.  It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.[12]

633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist.  Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges.  Rule 15bis(A) states: 

If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.

Although this rule was not in force at the time of the Čelebići trial proceedings,[13] the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.

[…]

637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial,[14] with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]

638. […] The Appeals Chamber does not accept that this was the correct approach.  In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite

[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive.  The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].[15]

See also paragraphs 640-649.

52. … In the circumstances to which Rule 15bis(D) is addressed, it is not for a party to move the court, rather, the Rule allows the remaining Judges to take the initiative and act in their discretion, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. The parties have a right to be heard before the decision is made, but they bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.

At paras 42-43, the Appeals Chamber held:

42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated:

[t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1]

43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2]

Rule 15bis envisages situations where a Judge is unable to sit on a case. Rule 15bis(F), more specifically, reads:

In case of illness or an unfilled vacancy or in any other similar circumstances, the President may, if satisfied that it is in the interests of justice to do so, authorise a Chamber to conduct routine matters, such as the delivery of decisions, in the absence of one or more of its members.

The Appeals Chamber in the present case found:

10. […] The Appeals Chamber considers that routine matters, within the meaning of Rule 15bis (F) of the Rules, are generally matters of a regular and standardised nature, such as the convening of a status conference to organise exchanges between the parties, pursuant to Rule 65bis of the Rules. Other matters, both of a substantive and procedural nature, are generally non-routine, for the purposes of Rule 15bis (F) of the Rules.

47. The right of an accused to be tried before an impartial tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] Furthermore, Article 12 of the Statute cites impartiality as one of the essential qualities of any Tribunal Judge, while Rule 14(A) of the Rules provides that, before taking up his duties, each Judge shall make a solemn declaration that he will perform his duties and exercise his powers “impartially and conscientiously”. The requirement of impartiality is again recalled in Rule 15(A) of the Rules, which provides that “[a] judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality”.

48. The Appeals Chamber reiterates that there is a presumption of impartiality which attaches to any Judge of the Tribunal and which cannot be easily rebutted.[2] In the absence of evidence to the contrary, it must be assumed that the Judges “can disabuse their minds of any irrelevant personal beliefs or predispositions”.[3] Therefore, it is for the appellant doubting the impartiality of a Judge to adduce reliable and sufficient evidence to the Appeals Chamber to rebut this presumption of impartiality.[4]  [See also para. 183 of the Appeal Judgement]

49. In the Akayesu Appeal Judgement, the Appeals Chamber recalled the criteria set out by the ICTY Appeals Chamber regarding the obligation of impartiality incumbent upon a Judge:

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. On this basis, the 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.[5]

50. The test of the reasonable observer, properly informed, refers to “an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality, apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.[6] The Appeals Chamber must therefore determine whether such a hypothetical fair-minded observer, acting in good faith, would accept that a Judge might not bring an impartial and unprejudiced mind to the issues arising in the case.[7]

78. The Appeals Chamber recalls that the Judges of this Tribunal and those of the ICTY are sometimes involved in several trials which, by their very nature, cover issues that overlap. It is assumed, in the absence of evidence to the contrary, that, by virtue of their training and experience, the Judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.[8] The Appeals Chamber agrees with the ICTY Bureau that “a judge is not 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”.[9] [See also para. 84 et seq. of the Appeal Judgement]

See also Hadžihasanović Appeal Judgement, para. 78.

NOTING Mr. Nahimana’s submission that the Decisions of 22 April 2008 and 30 June 2010 should be annulled because they are signed exclusively by Judge Pocar and thus do not evince that the remainder of the Bench participated in the deliberations;

CONSIDERING that, in accordance with the consistent practice of the Appeals Chamber, the Presiding Judge signs decisions on behalf of the Bench after the conclusion of deliberations on a motion;

FINDING, therefore, that Mr. Nahimana’s argument that the Decisions of 22 April 2008 and 30 June 2010 be annulled on the basis that they were signed exclusively by the Presiding Judge lacks merit;

The Appeals Chamber held that Rule 15bis(D) only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the newly composed Trial Chamber to resume proceedings.

127. Rule 15 bis(D) of the Rules provides that if an accused withholds his consent to the continuation of the proceedings with a substitute Judge pursuant to Rule 15 bis(C) of the Rules, the remaining Judges may nonetheless decide to continue the proceedings with a substitute Judge if this would serve the interests of justice. It further specifies: […]

128. The Appeals Chamber agrees with Amicus Curiae that the appeal provided for under Rule 15 bis(D) of the Rules only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the substitute Judge and/or the newly composed Trial Chamber to resume proceedings. The Trial Chamber, by continuing with the case with the substitute Judge, impliedly acquiesced in the certification that Judge Hanoteau was familiar with the case to the requisite degree. Amicus Curiae fails to bring forward any evidence that Judge Hanoteau had not sufficiently familiarised himself with the case to be able to properly discharge his functions. Consequently, Amicus Curiae does not demonstrate that the Trial Chamber abused its discretion in continuing the trial after receipt of the certificate of Judge Hanoteau and thus rendered the trial unfair. This sub-ground is dismissed. 

18.     Furthermore, the statutory limitation on the cumulative period of service of ad litem judges under Article 13bis(2) [sic: 13ter(2)] should be interpreted in light of its object, purpose, context and practical policy considerations, or raison d’être of the provision in question.[1] In this regard, the Appeals Chamber agrees with the Prosecution that “the choice of a three-year cumulative service limit appears to have been primarily motivated by budgetary considerations, and not by any issues concerning the fair trial of an accused”.[2] Further, even at the time of establishment of the mechanism providing for the institution of ad litem judges, it was considered logically conceivable that extensions of service might be necessary where a trial would last longer than three years.[3] It is obvious that, in these circumstances, preventing Judge Canivell from sitting in the Krajišnik case until the end of the trial would in fact be detrimental to the right of the Accused[4] to be tried without undue delay under Article 21 of the Statute, this being the expression of the fundamental right enshrined in Article 14(3)(c) of the International Covenant on Civil and Political Rights of 1966.[5]

25.     […] Allowing Judge Canivell to sit until the end of the present case has been done out of a legitimate concern in this trial to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process.[6]

177. 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.  Article 13(1) of the Statute reflects this, by expressly providing that Judges of the International Tribunal “shall be persons of high moral character, impartiality and integrity”.[1]  This fundamental human right is similarly reflected in Article 21 of the Statute, dealing generally with the rights of the accused and the right to a fair trial.[2]  As a result, the Appeals Chamber need look no further than Article 13(1) of the Statute for the source of that requirement.  

Having consulted Article 6 of the European Convention of Human Rights and examined the interpretation by the European Court of Human Rights and national legal systems of the requirement of impartiality [for detailed analysis, see paras. 181-188], the Appeals Chamber proceeded to analyse how this requirement of impartiality should be interpreted and applied by the Appeals Chamber:

189. […] the Appeals Chamber finds 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.  On this basis, the 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.[3]

190.    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.”[4]

191. The Appeals Chamber notes that Rule 15(A) of the Rules provides:

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. [5]

The Appeals Chamber is of the view that Rule 15(A) of the Rules falls to be interpreted in accordance with the preceding principles.  

The Appeals Chamber also considered

196. In the view of the Appeals Chamber, there is a presumption of impartiality which attaches to a Judge. This presumption has been recognised in the jurisprudence of the International Tribunal,[6] and has also been recognised in municipal law. […]

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 Judge Mumba was not impartial in [the Appellant’s] case. There is a high threshold to reach in order to rebut the presumption of impartiality. As has been stated, “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established.’”[7]

The Appeals Chamber further concluded:

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.  The possession of [experience in international law, including human rights law,] is a statutory requirement for Judges to be elected to this Tribunal.  It would be an odd result if the operation of an eligibility requirement were to lead to an inference of bias.  Therefore, 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.[8]

13. At a ceremony held at the Tribunal on 25 October 2010, the Tribunal named the winners of the “Essays and Drawings Competition”, which involved students from schools in five East African countries. Some of the drawings entered into this competition were then displayed at the Tribunal.[1] According to Hategekimana, one of the first prizes in the competition was awarded to a 12-year old girl from Butare Prefecture, whose drawing depicts a Judge from the Tribunal pointing his finger at an accused and saying the words: “You Hategekimana […] tell what you have done in genocide. You, Hategekimana you will go in prison 30 years”, while the accused is shown uttering the words: “I have killed 77 people”.[2] Hategekimana contends that this drawing, which was exhibited in the corridors of the Tribunal before the delivery of the Trial Judgement, could be admired by the Judges of the Trial Chamber and that a legal officer involved in the drafting of the Trial Judgement was part of the competition’s jury.[3] At the pronouncement of the Trial Judgement, Hategekimana complained about the exhibition of the drawing and the Trial Chamber ordered that it be placed under seal.[4]

16. Article 20(3) of the Statute guarantees that an accused person shall be presumed innocent until proven guilty. In addition, the Statute and Rules guarantee an accused’s right to be tried by impartial Judges.[5] Rule 15(A) of the Rules specifically provides that “[a] Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality.” In particular, a Judge must withdraw from a case if it is shown that actual bias exists or if the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[6] The Appeals Chamber has also emphasized that there is a presumption of impartiality which attaches to any judge of the Tribunal and which cannot be easily rebutted.[7] Accordingly, it is for the appealing party alleging bias to adduce reliable and sufficient evidence to rebut that presumption.[8] The Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality.[9]

17. The Appeals Chamber acknowledges that it was highly improper to have a drawing of such nature on display in the corridors of the Tribunal during an ongoing trial and that this should have been avoided. However, it considers that Hategekimana provides no support for his allegation that the Judges in his case saw the drawing containing the handwritten inscriptions or posed for a photograph in front of it. The Appeals Chamber observes that none of the Trial Chamber’s Judges features in the photographs referred to by Hategekimana.[10] In any event, even if the Trial Chamber’s Judges had viewed the drawing, this would not be sufficient to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of those Judges.

The Appeals Chamber found that “the fact that a decision on disqualification cannot be appealed at trial does not necessarily mean that the impartiality of a Judge cannot be considered in an appeal from a judgement.” (para. 31).

15.     The Appeals Chamber observes that the Rules are not exhaustive as to the detailed steps or measures that Chambers may take in fulfilling the mandate of the Tribunal, but they are devised and amended in accordance with certain recognised fundamental principles that govern proceedings before the Tribunal […] The judges of the International Tribunal are given the power by Article 15 of the Statute to adopt (which includes the power to amend) the rules of procedure and evidence subject to the fundamental principles of justice set out in the Statute and international law.  These principles set the parameters for the interpretation and application of the Rules.  On the other hand, as stated by the Appeals Chamber in Aleksovski, “the purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal.”[1] It is plain from the successive amendments of the Rules that the Rules have been refined over the years through the practice of the Chambers in applying them.  New practice, which serves the mandate of the Tribunal and conforms to internationally recognised standards, may eventually be reflected in an amendment to the Rules. […] A decision which is in conformity with the principles of justice, even though not based on a written rule, does not prejudice the interests of the party. […]

39. The Appeals Chamber recalls that impartiality is one of the duties that judges pledge themselves to uphold at the time they take up their duties;[1] and this applies throughout the judge’s term of office in the Tribunal.[2] This is a component of the right to a fair trial that is recognized in Articles 19 and 20 of the Statute.[3] The Appeals Chamber in the Akayesu Appeal Judgement endorsed the standards applicable to impartiality embodied in the Statute and the Rules,[4] as previously defined by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY),[5] which pointed out:

“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. On this basis, the 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.”

40. With regard to the test of the “reasonable observer”, the ICTY Appeals Chamber held that:[6]

“[...] 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.”

41. The very Appeals Chamber pointed out that the Judge should rule on cases according to what he deems to be the correct interpretation of the law, by ensuring that his behaviour does not give the impression to an unbiased and knowledgeable observer that he is not impartial.[7] Lastly, the ICTY Appeals Chamber held that:[8]

“The relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [a] Judge […] might not bring an impartial and unprejudiced mind to the issues arising in the case.”

42. The Appeals Chambers of ICTY and ICTR emphasized in Akayesu and Furundžija respectively that Judges of the International Tribunal must be presumed to be impartial, and, in the instant case, the Chamber endorses the test for admissibility of an allegation of partiality set forth in the Akayesu Appeal Judgement, wherein it was held that:

“[...] There is a presumption of impartiality which attaches to a Judge.  This presumption has been recognised in the jurisprudence of the International Tribunal, and has also been recognised in municipal law.

In 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 in question was not impartial in his case. There is a high threshold to reach in order to rebut the presumption of impartiality.”[9]

“The Judges of this Tribunal and those of ICTY often try more than one case at the same time, which cases, given their very nature, concern issues which necessarily overlap. It is assumed, in the absence of evidence to the contrary, that by virtue of their training and experience, judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.”[10]

43. The Appeals Chamber also recalls that the Appellant must set forth the arguments in support of his allegation of bias in a precise manner, and that the Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality.[11]

28. The right of an accused to be tried before an independent tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] […] The independence of the Judges of the Tribunal is guaranteed by the standards for their selection,[2] the method of their appointment, their conditions of serviceand the immunity they enjoy. The Appeals Chamber further notes that the independence of the Tribunal as a judicial organ was affirmed by the Secretary-General at the time when the Tribunal was created,[6] and the Chamber reaffirms that this institutional independence means that the Tribunal is entirely independent of the organs of the United Nations[7] and of any State or group of States.[8] Accordingly, the Appeals Chamber considers that there is a strong presumption that the Judges of the Tribunal take their decisions in full independence, and it is for the Appellant to rebut this presumption.

32. […][T]he Appeals Chamber considers that the fact that pressures were exerted is not enough to establish that the Judges who ruled in this context on the Prosecutor’s Request for Review or Reconsideration were influenced by those pressures.

In this case, the Defendant sought to appeal the Tribunal Bureau’s decision not to disqualify a judge pursuant to Rule 15(B). The Appeals Chamber noted that the Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Tribunal’s Bureau pursuant to Rule 15(B).

4. The Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Bureau pursuant to Rule 15(B).[1] Rather, the Appeals Chamber’s consideration of whether a Trial Judge should have been disqualified is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[2]

5. Rule 15(B) envisions a specific two-stage process of consideration for a request to disqualify a Judge. As the Rule clearly states, an application for disqualification is to be made to the Presiding Judge of the Chamber seized of the proceedings, which in this case is Judge Khan, the Presiding Judge of Trial Chamber III.[3] The Presiding Judge is then to confer with the Judge in question. If the party disputes the Presiding Judge’s decision, the Bureau shall determine the matter in a de novo review.[4]

6. The Appeals Chamber observes that Mr. Seromba did not follow this procedure and filed his claim directly with the Bureau,[5] thereby depriving himself of the review procedure envisioned by the Rule. Although it would have been within the discretion of the Bureau to dismiss Mr. Seromba’s request as improperly filed,[6] the Appeals Chamber cannot conclude that it erred in considering the matter in the first instance.

55.     As a rule, a fair trial requires that a set of procedural rules be established to ensure equality between the parties to the case and guarantee the independence of the Tribunal and the impartiality of the judges. A judge is presumed to be impartial until proven otherwise[1]. This is a subjective test: impartiality relates to the judge’s personal qualities, his intellectual and moral integrity. A judge is bound only by his conscience and the law. That does not mean that he rules on cases subjectively, but rather according to what he deems to be the correct interpretation of the law, ensuring for an unbiased and knowledgeable observer that his objectivity does not give the impression that he his impartial, even though, in fact, he is. Moreover, before taking up his duties, each judge makes a solemn declaration obliging him to perform his duties and exercise his powers as a judge “honourably, faithfully, impartially and conscientiously.”[2] The independence of the Tribunal is measured by an objective test: as a judicial organ with jurisdiction, as established by Security Council resolution 955, it is entirely independent of the organs of the United Nations.

11. The Appeals Chamber considers that anyone exercising a judicial power has the responsibility and the competence to ensure that he has the power which he is proposing to exercise. The new Rule 15bis (D) gives a judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge. This power comprehends the incidental power to decide whether or not this provision is applicable to the particular case of the Butare trial. This incidental power has to be exercised by the two remaining judges to whom the main power is entrusted. […]

32. On the issue of disqualification of Judges, Rule 15(A) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides that “[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.”[1] In light of Article 13 of the Statute – which requires Judges to be, inter alia, impartial – Rule 15(A) of the Rules has been interpreted and applied in accordance with the principle that a Judge is not impartial if actual bias or an unacceptable appearance of bias exists.[2] The Appeals Chamber also notes that a Judge who has not met the requirements of this Rule in a specific case has otherwise been entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases when he fulfils the requirements of Rule 15 of the Rules in those other cases.[3] The Appeals Chamber therefore considers that determinations of actual bias or unacceptable appearance of bias under Rule 15 of the Rules should be made on a case‑by‑case basis.[4] Accordingly, the Appeals Chamber finds that Judge Harhoff’s disqualification in the Šešelj case, which was determined pursuant to Rule 15 of the Rules, does not automatically disqualify him from other cases. Stanišić and Župljanin therefore cannot rely on a finding of apparent bias made in another case and must instead show that those actions of Judge Harhoff which allegedly demonstrate an unacceptable appearance of bias, impacted on his impartiality in their trial proceedings.[5]

33. Additionally, as held by the Appeals Chamber, there has been no general finding or final determination on Judge Harhoff’s partiality with regard to the present case,[6] and the factual findings in the Šešelj Decisions were limited to the particular circumstances of that case.[7] The Appeals Chamber emphasises in this respect that, as a rule, factual findings made by one chamber are not binding upon subsequent chambers.[8] The Appeals Chamber also does not find Stanišić and Župljanin’s argument that the Šešelj case and the current proceedings are “identical” to be persuasive.[9] Recalling that it is the burden of the party seeking disqualification of a Judge to demonstrate a reasonable apprehension of bias,[10] the Appeals Chamber notes that the arguments presented in the Šešelj case, as well as the evidence considered, differ from those in this case, and that in the Šešelj case, the Letter was sent by Judge Harhoff while the case was ongoing.[11] Thus, Stanišić and Župljanin’s reliance on the findings in the Šešelj case is insufficient to meet their burden of proof. Furthermore, the Appeals Chamber considers that Stanišić takes out of context the Acting President’s Order Replacing Judge Harhoff in the Šešelj proceedings.[12] It is clear that the relevant statement in the order, i.e. that Judge Harhoff’s disqualification was “therefore now final”, concerned the finality of the disqualification pursuant to Rule 15 of the Rules in the Šešelj proceedings and related only to that case.[13] Similarly, Stanišić and Župljanin’s argument that a different conclusion on Judge Harhoff’s impartiality in this case would invalidate the Šešelj Decisions is without merit and is dismissed.

71.     […] The Appeals Chamber reiterates that as “professional judges, members of the Rwandan judiciary benefit from a presumption of independence and impartiality”.[1] Thus, their personal impartiality must be presumed until there is proof to the contrary.[2] This presumption cannot be easily rebutted and it is for the party alleging bias to rebut it on the basis of adequate and reliable evidence.[3] In this respect, there is a high threshold to reach and the reasonable apprehension of bias must be firmly established.[4] […]

9.       The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges.[1] Legal officers merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[2]

10.     Notwithstanding the above, in some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial.[3] In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[4] The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.[5]

[…]

37.     When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.”[6] It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases.[7] The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.[8]

38.     With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test,[9] the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision,[10] as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case[11] without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning.

39.     Moreover, the Appeals Chamber recalls that “‘mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves’, to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.”[12] Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case.

See also paragraphs 30, 33.

11.     It is self-evident that justice and the rule of law begin with an independent judiciary.[1] The right to be tried before an independent and impartial tribunal is an integral component of the right to a fair trial enshrined in Article 19 of the Statute[2] and embodied in numerous human rights instruments.[3] The United Nations Human Rights Committee has stated that the right to an independent and impartial tribunal “is an absolute right that may suffer no exception”.[4] To uphold this right, in the exercise of their judicial functions, the judges of the Mechanism shall be independent of all external authority and influence, including from their own States of nationality or residence.[5] A corollary guarantee for the independence of the Mechanism’s judges is contained in Article 29 of the Statute, which provides for full diplomatic immunity for judges during the course of their assignments – even while exercising their functions in their home country.[6] Accordingly, diplomatic immunity is a cornerstone of an independent international judiciary, as envisaged by the United Nations. The ability of the judges to exercise their judicial functions first and foremost from their home countries reflects the unique characteristics of the Mechanism, which was intended to ensure justice coupled with cost‑savings and efficiency.[7] Turkey was a member of the United Nations Security Council at the time of the consideration of our Statute and voted in favour of its adoption,[8] a Statute which guarantees an independent judiciary and full diplomatic immunity for our judges while performing their work.[9] […]

16.     I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction,[1] there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism.[2] Such orders have been implemented.[3] In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism.