115. The Appeals Chamber is not convinced that the Trial Chamber’s assessment of the evidence is unreasonable or shows bias. A presumption of impartiality attaches to any Judge of the Tribunal.[1] The Presiding Judge’s question to Witness Nahimana reveals nothing more than her attempt to understand why the witness was better placed to know what transpired at the parish on 30 April 1994 than the two individuals whom he was visiting.[2]

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]

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]

377. In Nahimana et al., the Appeals Chamber recalled that

[t]he 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. […] [T]he independence of the Judges of the Tribunal is guaranteed by the standards for their selection, the method of their appointment, their conditions of service and 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, and the Chamber reaffirms that this institutional independence means that the Tribunal is entirely independent of the organs of the United Nations and of any State or group of States. 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.[1]

378. The Appeals Chamber notes that Judges of this Tribunal are sometimes involved in trials which, by their very nature, cover overlapping issues.[2] In this regard, the Appeals Chamber previously held that

[i]t 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. 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”.[3]

Accordingly, the fact that the Trial Judges heard the Renzaho case while, at the same time, they participated in deliberations on the Appellant’s case does not in itself demonstrate an appearance of bias on the part of the Trial Judges.

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]

9. The Appeals Chamber will address two preliminary arguments. First, the Appellants contend that the two remaining judges in the Butare trial sat in the plenary which amended Rule 15bis on 27 May 2003 and that this impaired their impartiality.  The argument overlooks the fact that judges can in a legislative capacity make rules without prejudice to their right to pronounce in a judicial capacity on the vires or operation of the rules so made. In this case, article 14 of the Statute, which gives a rule-making competence to the judges of the Tribunal, does not prevent them from later deciding in their judicial capacity on the vires or operation of the rules adopted.

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.

352. The right of an accused to be tried before an independent and impartial tribunal is an integral component of the fundamental right to a fair trial. Impartiality is a required quality for a judge at the Tribunal, and a judge may not sit in any case in which he has, or has had, any association which might affect his impartiality. The Appeals Chamber observes that, as a general rule, a judge should not only be subjectively free from bias but also that nothing surrounding the circumstances would objectively give rise to an appearance of bias.

353. Rule 15 of the ICTY Rules prescribes a specific procedure for challenging the participation of a judge in a case on the grounds of bias. The Appeals Chamber recalls, however, that a presumption of impartiality attaches to judges of the Tribunal which cannot be easily rebutted. Where allegations of bias are raised on appeal, there is a high threshold to reach in order to rebut the presumption of impartiality and it is for the appealing party alleging bias to set forth substantiated and detailed arguments in support of demonstrating the alleged bias.

354. The Appeals Chamber observes that, shortly after the assignment of [REDACTED] to the case, the Trial Chamber provided Karadžić with specific information concerning [REDACTED], which highlighted the relevance of this information to a potential challenge to the composition of the bench.[6] […] Karadžić did not pursue this matter at trial. The Appeals Chamber finds that Karadžić’s inaction at trial in the face of his awareness of [REDACTED], which was specifically brought to his attention by the Trial Chamber, demonstrates that he did not object to [REDACTED] participation in his case at trial on the basis of an alleged apprehension of bias and could result in the possible waiver of this argument on appeal. Notwithstanding, in view of the fundamental importance of an impartial tribunal, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.