IN TRIAL CHAMBER II
Before: Judge David Hunt, Presiding
Registrar: Mrs Dorothee de Sampayo Garrido-Nijgh
Decision of: 18 May 2000
Radoslav BRDANIN & Momir TALIC
DECISION ON APPLICATION BY MOMIR TALIC FOR THE
The Office of the Prosecutor:
Ms Joanna Korner
Mr Michael Keegan
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
1. Pursuant to Rule 15(B) of the Tribunals Rules of Procedures and Evidence, the accused Momir Talic (Talic) has applied to me as the Presiding Judge of Trial Chamber II for the disqualification and withdrawal of Judge Mumba from both the trial and from the determination of a preliminary motion pursuant to Rule 72 pending before the Trial Chamber.1 Talic asserts that Judge Mumba has an association which might affect [ ] her impartiality" and thus, in accordance with Rule 15(A), she may not participate in either the trial or the Rule 72 Motion.2
2. The Rule 72 Motion alleges that the form of the current indictment is defective. One of the grounds taken is that, notwithstanding that Talic has been charged with grave breaches of the Geneva Conventions, the prosecution has not pleaded that the acts he is alleged to have committed took place in the course of an international armed conflict. That motion asserts that the Tadic Jurisdiction Appeal Decision requires such a fact to be proved in order to establish that the acts of the accused were (in the terms of Article 2 of the Tribunals Statute) "against persons [ ] protected under the provisions of the relevant Geneva Convention".3
3. The prosecutions response asserts that it has sufficiently pleaded what is required by the following allegation in the amended indictment:4
At all times relevant to this indictment, a state of armed conflict and partial occupation existed in the Republic of Bosnia and Herzegovina. All acts or omissions herein set forth as Grave Breaches of the Geneva Conventions of 1949, recognised by Article 2 of the Statute of the Tribunal, occurred during that armed conflict and partial occupation.
In any event, the prosecution says, in Prosecutor v Tadic5 a case in which the time frame and area are said to have "echoed" those in the present case the Appeals Chamber has held that the armed conflict in Bosnia and Herzegovina must be classified as an international armed conflict,6 and that the Trial Chamber is bound by that decision.7 In his reply to the Rule 72 Motion, Talic argues that the phrase "armed conflict and partial occupation" does not amount to an allegation of an international armed conflict, and that references to the Tadic indictment are irrelevant.8
3 The submissions of the parties
4. In the present Request, Talic asserts:9
(1) The Tadic Conviction Appeal Judgment (in which Judge Mumba participated) came to its conclusion that the armed conflict in Bosnia and Herzegovina was an international one by accepting that:
(a) the Army of the Federal Republic of Yugoslavia ("FRY") and the Army of Republika Srpska possessed shared military objectives,10
(b) the Army of the FRY exercised overall control over the Bosnian Serb forces,11 and
(c) for the period material to that case the armed forces of Republika Srpska were to be regarded as acting under the overall control of and on behalf of the FRY.12
(2) This conclusion involved findings by the Appeals Chamber on a number of subsidiary facts relating to the organisation, structure, role and actions of the Army of Republika Srpska which the Defence in the present case contests.
(3) The relevant period in Tadic was 23 May to 31 December 1992, and the relevant area was optina Prijedor.13 The relevant period in the present case is between April and December 1992,14 and the relevant area is the Autonomous Region of Krajina ("ARK"), which included the municipality of Prijedor.15
(4) The identical facts to those considered in Tadic will be submitted for Judge Mumba to review in this case. Talic concludes:16
It is impossible to see how Judge Mumba could abandon the opinion she formulated and set out on identical facts facts which are again submitted for her review.
5. In its Response, the prosecution says that its stance in relation to the Request is properly one of neutrality.17 Talic has, without leave, filed a reply to that Response, and submits, actually in further reply to the Rule 72 Response,18 that it is only the ratio decidendi of an Appeals Chamber decision which relates solely to questions of law which is binding upon the Trial Chambers, and that the international character of the armed conflict is for the Trial Chamber in each case to determine for itself upon the evidence given in that case.19
4 Analysis and findings
6. If the argument of the prosecution is correct, and the Trial Chamber is bound by the factual decision of the Appeals Chamber upon the facts before it in the Tadic case, then the Trial Chamber will not be permitted to determine the issue for itself, and the fact that Judge Mumba also participated in the Appeals Chamber is irrelevant. But, without making any final decision upon the matter at this stage, it seems to me that there are problems with this particular argument of the prosecution. Although the Trial Chamber will be bound to apply the legal tests relevant to the existence of an international armed conflict stated by the Appeals Chamber in the Tadic case as part of the ratio decidendi of its Judgment, it is perhaps a surprising submission that the Trial Chamber is also bound by the factual decision of the Appeals Chamber in that case when it applied that legal test to the facts of that particular case.20
7. For the purposes of this present decision, therefore, I accept the submission by Talic that I should proceed upon the basis that the Trial Chamberwill have to determine whether, on the evidence before it in this case, any acts proved against Talic were committed by him in the course of an international armed conflict.
8. Rule 15(A) 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.
On one view, this Rule refers only to the existence of an actual bias on the part of the judge. I do not understand the Request as asserting an actual bias on the part of Judge Mumba. In my opinion, however, Rule 15(A) was intended to reflect the wider basis for disqualification uniformly recognised in both the common law and civil law systems and under the European Convention on Human Rights21 where, as I shall demonstrate, a judge is disqualified not only if there is an actual bias but also if there is a reasonable apprehension by the parties that such bias exists.22 This uniform approach in those jurisdictions is a valuable aid to the proper interpretation of Rule 15(A).
9. At common law, although the House of Lords of the United Kingdom has identified the principle as being that a judge should not participate in a case wherever there is a "real danger" that he or she was biased,23 this test has been criticised in Australia, Canada and New Zealand as impinging upon the requirement laid down in the famous dictum of Lord Hewart CJ: that it is
[ ] of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.24
However, a recent examination in the United Kingdom of the various tests laid down there and in Australia made in the Pinochet case25 led to the conclusion that, although these tests are stated differently, their application was likely in practice to lead to results which are so similar as to be indistinguishable.26
10. In Australia, the test laid down by the appellate courts is that a judge should withdraw not only if he or she is actually biased but also if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in that case.27 What is to be considered is not the actual reaction of the particular complainant but the hypothetical reaction of the fair-minded observer with sufficient knowledge of the actual circumstances to make a reasonable judgment.28
11. The test is expressed slightly differently in the United States. For a judge to be disqualified there, it must be shown there that the reasonable person, knowing all the circumstances, would expect the judge to be biased.29 The test has been codified in these terms:30
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
In my view, there is no significant difference in substance between that and the Australian and United Kingdom formulations.
12. In the civil law systems, the issue of disqualification is governed largely by statutory provisions which appear, generally, to include as grounds for disqualification both actual bias and an objectively justified fear of bias. In Germany, for example, a judge is disqualified from participating in a case either where he has already been associated with it in various capacities,31 or where there is otherwise a fear of bias, but only if there is reason to distrust his impartiality.32 In Sweden, there are also references (in the alternative) to similar associations with the case and to circumstances which create a legitimate doubt as to the judges impartiality.33 In France, there are again references to disqualification by reason of a judges association in various capacities with the particular case or the parties where that association is grave enough to put his impartiality in question.34 In Italy, a judge will be disqualified in circumstances which would lead a reasonable person to doubt his impartiality due to personal interest or other reasons.35
13. The European Convention on Human Rights provides, by Article 6, that everyone is entitled to a hearing by "an independent and impartial tribunal established by law". This provision has been interpreted by the European Court of Human Rights ("ECHR") as requiring disqualification where there is either a lack of subjective impartiality (the existence of actual bias) or a lack of objective impartiality (the existence of a fear of bias). In the latter case, it is said, the determinant is whether the fear of bias can be held to be objectively justified, or whether the judge has offered guarantees sufficient to exclude any legitimate doubt in the matter.36 Article 6 and the Courts decisions in relation to it appear to have widely affected the attitude of the domestic courts in Europe. For example, until the Court had found against it in a number of cases, Belgium had not accepted objective partiality as a test.37 The courts of Denmark,38The Netherlands39 and Portugal40 have also regarded the terms of the Convention and the decisions of the ECHR as being applicable in their countries in relation to judicial impartiality.
14. In my view, there is therefore no difference in substance between the various legal systems as to the tests to be applied concerning the disqualification of judges. I accept that an apprehended bias such as described in all these authorities is sufficient to warrant disqualification in both the common law and civil law systems and under the European Convention. In my view, the basis for disqualification stated in Rule 15(A) should be interpreted as also including such an apprehended bias. That is the interpretation of Rule 15(A) which I have adopted.
15. The question raised by the Request is, then, whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgment) would be that Judge Mumba, having participated in the Tadic Conviction Appeal Judgment, might not bring an impartial and unprejudiced mind to the issue of whether the armed conflict in Bosnia and Herzegovina at the time and place relevant to this case was an international one.
16. As part of the knowledge which such an observer would have of the actual circumstances of this case, the observer would know of the received jurisprudence of the Tribunal, that the issue as to whether an international armed conflict existed at a particular time or place is a matter for each
Trial Chamber to determine based upon the evidence before it in the particular case.41 Such observer would also know that, although the periods relevant to the two cases are much the same, the places do not cover the same geographical area in that optina Prijedor (the area with which Tadic was concerned) is but one of more than fifteen municipalities within the ARK (which is the area with which this case is concerned). But that observer would also realise that what have been described earlier as the findings on the subsidiary facts as to the organisation, structure, role and actions of the Army of Republika Srpska42 would be relevant anywhere in the ARK in which the Army of Republika Srpska was involved in an armed conflict with non-Serb persons. Accordingly, and for the purposes of this case, I accept the submission by Talic that these issues will arise for determination in this case.
17. This observer would nevertheless query the assertion by Talic that the facts to be submitted to the Trial Chamber in the present case will be "identical" with those before the Appeals Chamber in the Tadic case.43 Those facts must be determined by reference to the evidence produced in the particular case. This observer would assume that, in disputing that the armed conflict was international in character, the two accused in the present case Talic (who is alleged to have been the Chief of Staff/Deputy Commander of the 5th Corps of the Yugoslav Peoples Army, and then in command of that Corps,44 and ultimately the Chief of the General Staff in the Army of Republika Srpska)45 and his co-accused, Radoslav Brdanin (who is alleged to have been the President of the ARK Crisis Staff, and then the acting Vice-President of Republika Srpska)46 would be in a more advantageous position than was Tadic (a café proprietor and a minor local politician) to produce evidence upon these so-called subsidiary issues, and that, realistically, the evidence will be somewhat different to that which the Appeals Chamber had to consider in Tadic. Finally, this observer would know that the judges of this Tribunal are professional judges, who are called upon to try a number of cases arising out of the same events, and that they may be relied upon to apply their mind to the evidence in the particular case before them.
18. Of course, the question is not whether there is a reasonable apprehension that Judge Mumba will decide these issues in the same way as they were decided in Tadic. As Mason J (later Mason CJ) of the High Court of Australia said:47
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" [ ]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
19. To state the issue once more, it is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgment) would be that Judge Mumba, having participated in the Tadic Conviction Appeal Judgment, might not bring an impartial and unprejudiced mind to the issues in the present case identified in pars 4 and 15, supra. It is not whether she would merely decide these issues in the same way as they were decided in that case. The distinction is an important one.
20. Having given the Request made by Talic careful consideration, I havenot been satisfied by him that the reaction of the fair-minded observer would be that Judge Mumba might not bring an impartial and unprejudiced mind to any of the issues in this case. I have conferred with Judge Mumba, as Rule 15(B) requires. She has agreed with me that her participation in the Tadic Conviction Appeal Judgment provides no basis for her disqualification in the present case. Neither of us see any need to refer the matter to the Bureau for its determination.
21. The Request is refused.
Done in English and French, the English text being authoritative.
Dated this 18th day of May 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]