DECISION OF THE BUREAU
Before: President Gabrielle Kirk McDonald
Judge Cassese, Presiding Judge of Trial Chamber II
Judge Jorda, Presiding Judge of Trial Chamber I
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 04 September 1998
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION OF THE BUREAU ON MOTION ON JUDICIAL INDEPENDENCE
(President McDonald, Vice-President Shahabuddeen, Judge Cassese and Judge Jorda)
THE BUREAU of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the territory of the Former Yugoslavia since 1991, comprising President McDonald, Vice-President Shahabuddeen, Judge Cassese, Presiding Judge of Trial Chamber II, and Judge Jorda, Presiding Judge of Trial Chamber I,
DECIDES as follows:
On 25 May 1998, the Trial Chamber in the matter of the Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo (IT-96-21-T, hereinafter referred to as the Celebici case) received a motion from all four of the accused entitled "Motion on Judicial Independence" (the motion). The Prosecutor filed no response.
In the motion, the applicants request that Judge Odio Benito cease to take any further part in the proceedings of the Celebici case on two grounds, set out by the applicants as follows:
I. Factual and Legal Background
1. The Facts
On 17 September 1993, Judge Odio Benito was elected as a Judge of this Tribunal. She took up office in November 1993 and her term was due to end in November 1997. Judge Odio Benito, Presiding Judge Karibi-Whyte and Judge Jan (making up the entire Trial Chamber in the Celebici case) were not re-elected.
This raised the problem that, with effect from 17 November 1997, the three Judges sitting on the Celebici case would cease to be Judges of the Tribunal and therefore could not continue to hear the case to its conclusion.
On 27 August 1997, the Security Council dealt with that situation by passing Resolution 1126 (1997), by which it -
" endorse[d] the recommendation of the Secretary-General that Judges Karibi-Whyte, Odio-Benito and Jan, once replaced as members of the Tribunal, finish the Celebici case which they have begun before expiry of their term of office; and [took] note of the intention of the International Tribunal to finish the case before November 1998." 1
On 1 February 1998, Judge Odio Benito was elected as one of two Vice-Presidents of the Republic of Costa Rica, and on 8 May 1998 she took the oath of office as Second Vice-President.
Before seeking the nomination for Second Vice-President of Costa Rica, Judge Odio Benito explained, in writing, her intentions to the then President of the Tribunal, Judge Antonio Cassese, and sought his approval. Her letter was submitted to the Judges of the Tribunal, meeting in Plenary. In this letter, Judge Odio Benito stated that, if elected, she would not assume any of the functions of that office until the completion of her duties as a member of the Trial Chamber hearing the Celebici case. It was unanimously decided by the Plenary that, based on this commitment by Judge Odio Benito, such action would not be incompatible with her duties as a Judge of this Tribunal. After she was elected, Judge Odio Benito again informed Judge Cassese, in writing. This letter was likewise submitted to the Plenary, which granted approval for her to take the oath of office.
The President of Costa Rica also wrote to the Tribunal confirming that Judge Odio Benito would continue to discharge her functions as Judge of the Tribunal until the completion of the Celebici case2 and that she would not be assuming any functions in the Costa Rican Government before 17 November 1998.3
2. The Law
Article 13(1) of the Statute of the Tribunal and Rule 15 of the Rules of Evidence and Procedure are the relevant provisions under which the motion is made. Article 13(1)4 reads as follows -
"The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law."
Sub-rule 15(A) and Sub-rule 15(B) of the Rules of Procedure and Evidence read as follows -
"(A) 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.
(B) Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal on the above grounds. The Presiding Judge shall confer with the Judge in question, and if necessary the Bureau shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge."
The Presiding Judge in the trial, Judge Karibi-Whyte, has conferred with Judge Odio Benito and has, pursuant to Sub-rule 15(B), referred the matter to the Bureau for determination.
1. Qualification of Judges of the International Tribunal for the Former Yugoslavia
In the motion the applicants contend that Judge Odio Benito ceased to meet the qualifications necessary to be a Judge of this Tribunal.
Pursuant to Article 13(1) of the Statute, in addition to the possession of high moral character, impartiality and integrity, the only prerequisite for appointment as a Judge of the Tribunal is "qualification for appointment to the highest judicial office" of the country from which the Judge comes. Judge Odio Benitos "high moral character" and "integrity" are not in question. In fact, the applicants state in their motion that they "in no way seek to suggest that the Learned Judge has done any act which might be construed as being impartial." It is assumed from the context of the motion that the applicants intended to say that Judge Odio Benito has not done any act which may be construed as being partial. What is being questioned is whether, having regard to the holding of the office of Second Vice-President of Costa Rica, the requirements of impartiality and possession of the qualifications for appointment to the highest judicial offices in Costa Rica are now being met.
Article 159 of the Constitution of Costa Rica, relating to judicial qualifications, provides as follows-
"To be a magistrate it is necessary to be:
In the circumstances before the Bureau, it has not been shown that Judge Odio Benito has ceased to possess the qualifications required by Article 159 of the Constitution of Costa Rica.
The applicants rely on Article 161, which provides -
"The position of magistrate is incompatible with that of an official of the other supreme
This relates to the subject of incompatibility of functions, a question dealt with under the topic of judicial independence, discussed below.
2. Judicial Independence
In the motion, the applicants state -
" we in no way seek to suggest that the Learned Judge has done any act which might be construed as being impartial [sic]. Rather, we respectfully suggest that as a matter of general principle, the Learned Judge ought to be disqualified from the office of Judge of the International Tribunal because the elective political office which she now holds in addition to the office of Judge of the International Tribunal is one which might affect the Learned Judges impartiality." 5
In effect, the motion is grounded on a general principle relating to incompatibility of functions giving rise, in the particular circumstances, to an "appearance of partiality".
The question of impartiality has been dealt with by the European Court of Human Rights (the Court).
Article 6(1) of the European Convention on Human Rights (ECHR) provides that -
"in the determination of . . . any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The ECHR organs have established a two-fold test for assessing the impartiality of a tribunal:
"The existence of impartiality for the purposes of article 6(1) must be determined according to a subjective test, that is on the basis of the personal conviction that a particular judge has in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect."6 (emphasis supplied).
Under the objective component of this test, the court must assess relevant circumstances that may give rise to an "appearance" of partiality. If there is "legitimate reason to fear" a lack of impartiality
in a judge, he or she must withdraw from the case.7
The challenge to the Judges impartiality in this case is linked to the question of her independence as a judge. The test for measuring independence has been set forth thus by the Court in Campbell and Fell v. United Kingdom:
"In determining whether a body can be considered to be independent - notably of the executive and the parties in the case - the Court has had regard to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence."8 (emphasis supplied).
In Sramek v. Austria9 the Court was faced with a complaint regarding the "independence" of a tribunal composed of, among others, a person who was the mayor of a municipality. The mayor in fact acted as chairman of the Tribunal. Holding that there was no breach of Article 6(1) of the ECHR by reason of the fact that "the person who . . . acted as chairman of the [tribunal] happened to be a mayor"10, the Court held:
"It is true that the municipalities in Austria exercise their powers. . . subject to the supervision of the Land [Government] . . . ; however, it cannot be concluded from this that their mayors do not act independently in matters which - like those involved here - fall outside the ambit of those powers."11
These cases, though deriving from different systems, are useful in showing that the mere fact that a person who exercises judicial functions is to some extent subject, in another capacity, to executive supervision, is not by itself enough to impair judicial independence.
The applicants contend that, although there is no explicit provision in the Statute of the Tribunal stating that judicial and political offices are incompatible, Article 13 of the Tribunals Statute and Rule 15 of its Rules of Procedure and Evidence, taken together, have the same effect as Article 16(1) of the Statute of the International Court of Justice, which provides that -
"No member of the Court may exercise any political or administrative function "
The applicants also refer also to Article 7 of the Statute of the International Tribunal for the Law of the Sea which contains the same wording as the above, except that the word Court is replaced with the word Tribunal.
The question, however, is not whether there is a prohibition against the exercise of any political or administrative function, but whether such a function is being exercised by Judge Odio Benito. In the circumstances of this case, she is not exercising any such function.
The applicants contend that the fact that Judge Odio Benito holds political office as a Vice-President of the Republic of Costa Rica is sufficient to create the appearance of lack of impartiality within the meaning of Rule 15(A) of the Tribunals Rules of Procedure and Evidence. They state that
1. Costa Rica is a member of the General Assembly
2. Costa Rica is a non-permanent member of the Security Council, having been elected for a two year term from 1 January 1997.
3. As Vice-President, pursuant to Title X of the Constitution of Costa Rica, the Judge may be designated to take the Presidents place in the latters absence, and that the duties of the President include the conduct of international relations and the making of treaties.
On the basis of these matters, the applicants contend that Judge Odio Benitos impartiality as a Judge of the Tribunal is affected, their argument being as follows -
the Vice-President may be expected to participate in policy decisions affecting, for example, how votes are cast in the Security Council or the General Assembly by Costa Rica (which may include matters relating to the conflict and continuing peace-making process in the countries of the Former Yugoslavia) as well as international relations with the nations which emerged from the collapse of the Former Yugoslavia.
It will also be noted that the Republic of Costa Rica as a member of the Security Council is a member of the very body that created the International Tribunal by its resolution of 25th. May 1993. That body is the one which has the power to alter the Statute, as it has recently done by increasing the establishment of judges. It also extended the term of office for the Celebici judges to enable them to complete this case.12
In fact, Judge Odio Benito has been holding the position of Vice-President in name only from the date she took the oath of office. She has committed herself not to take up the duties of her post until she has completed her judicial duties. The contention that in the event of the Presidents absence she may have to assume his role is not one of substance. Under the Constitution of the Republic of Costa Rica there are two other officials who can also undertake such a role - the first Vice-President and the President of the Legislative Assembly.13 She has undertaken not to assume the functions or duties of the President of Costa Rica in his temporary or permanent absence prior to the termination of her tenure as Judge. Furthermore, the President of the Republic of Costa Rica has agreed that she will not assume her duties as Second Vice-President until such time.
For these reasons, the Bureau concludes that Judge Odio Benito is not disqualified under Sub-rule 15(A) of the Rules of Procedure and Evidence from sitting on the trial of the applicants. The competence conferred on the Bureau under Sub-rule 15(B) of the said Rules does not extend to aspects of the applicants motion raising matters going beyond the scope of Sub-rule 15(A).
The Bureau, having considered all the arguments and supporting material, decides, under Sub-rule 15(B) of the Rules of Procedure and Evidence of the Tribunal, that Judge Odio Benito is not disqualified to sit in the trial of the four accused on the grounds referred to in Sub-rule 15(A) of the Rules.
Gabrielle Kirk McDonald
Dated this 4th day of September 1998
At The Hague
1 U.N. Doc. S/RES 1126 (1997).
2 Letter from His Excellency Miguel Angel Rodriguez E., President-Elect of the Republic of Costa Rica to the President of the Tribunal, dated 9 March 1998.
3Letter from His Excellency Miguel Angel Rodriguez E., President of the Republic of Costa Rica to the President of the Tribunal, dated 7 July 1998.
4Which is exactly the same as Article 12(1) of the Statute of the International Tribunal for Rwanda.
6Hauschildt v. Denmark A 154 (1989) para. 46.
7Id. At para. 48.
8App. No. 8209/78.
9(1985) 7 EHRR 351.
10Id. at para. 40.
11Id at para. 40.
13Article 135 of the Constitution of the Republic of Costa Rica, which provides that the replacement for the President in his "complete absence" shall be the first Vice-President, the second Vice-President and the president of the Legislative Assembly. If the second Vice-President was required but unavailable (whatever the reason of her unavailability) the president of the Legislative Assembly could take over the Presidents duties.