15. The Panel considers as insubstantial the argument of the Defence that Judge Liu, having disagreed with the majority in the decision to disqualify Judge Harhoff as a Judge in the Šešelj case, is not in a position to adjudicate the Motion to vacate the Trial Judgement without an unacceptable appearance of bias. The Panel, in this context, considers that Judge Liu's position on the bench of a special chamber deciding on the matter of Judge Harhoff's disqualification in the Šešelj case at trial level must be distinguished from his adjudication of the Motion to Vacate the Trial Judgement in the Stanišić and Župljanin case as a member of the Appeals Chamber. In this latter capacity Judge Liu is not, as the Defence argues, dealing with the issue of disqualification of Judge Harhoff as such.[1] Notwithstanding the fact that the basis for the disqualification of Judge Harhoff may be a relevant factor when considering the Motion to Vacate the Trial Judgement, the Panel finds that consideration of this factor does not of itself constitute a circumstance which would lead a reasonable and informed observer to be of the view that Judge Liu might not bring an impartial and unprejudiced mind to the issues to be adjudicated in that motion.

16. The Panel concludes that the Defence has not demonstrated, as required, a reasonable apprehension of bias on the part of Judge Liu from the standpoint of a reasonable observer. It is not convinced by the submissions of the Defence that Judge Liu, having previously dissented on the issue of disqualification of Judge Harhoff, would be unable to impartially decide on the Motion to Vacate the Trial Judgement. In this respect, the Panel concurs with the reasoning set out by the Acting President in his Decision on Motion for Recusal in that a motion to vacate a trial judgement involves issues that need not be addressed in the context of a motion to disqualify a Judge.[2]

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. […]

72. The Appeals Chamber recalls that Rule 15(B) of the Rules of 26 June 2000 provided:

Any party may apply to the Presiding Judge of a Chamber for the disqualification of a Judge of that Chamber from a case upon the above grounds. After the Presiding Judge has conferred with the Judge in question, the Bureau, if necessary, shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.[1] 

This provision does not specify under what circumstances the question of recusal of a Judge is to be referred to the Bureau. The Appeals Chamber takes the view that the need to do so may arise under various circumstances.

73. First, the Appeals Chamber would point out that, under the principle that the same person cannot be both judge and party, the President of the Chamber cannot rule on a request for recusal if he or she is directly affected by such request.[2] However, Judge Pillay was in the position of both judge and party, as she had to rule on her own recusal following the submission of Appellant Barayagwiza’s request. Faced with such a situation, she should have referred the issue to the Bureau.

74. Secondly, the Appeals Chamber recalls that it is necessary to refer the issue to the Bureau if, after consultation with the judge concerned, the President of the Chamber finds that it is not necessary to recuse that judge, but that decision is challenged.[3] Therefore, since Judge Pillay’s decision to reject the request for recusal of Judge Møse was challenged by Barayagwiza (as evidenced by his Appeal of 18 September 2000), the issue should have been referred to the Bureau.

75. However, […] [h]aving found that the impartiality of Judges Pillay and Møse could not be impugned by reason of their visit to Rwanda, the Appeals Chamber considers that the procedural irregularities committed by the Trial Chamber in ruling on the motion for disqualification of Judges Pillay and Møse were not, in themselves, 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 appeal on this point is accordingly dismissed.

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).

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.