Case: IT-02-60


Judge Theodor Meron, President

Judge Fausto Pocar, Vice-President
Judge Richard May
Judge Daqun Liu
Judge Claude Jorda

Mr Hans Holthuis

Decision of:
19 March 2003



Dragan JOKIC




Counsel for the Applicant:

Mr. Michael Karnavas

Counsel for the Prosecutor:

Mr. Peter McCloskey

  1. Pursuant to Rule 15(B) of the Rules of Procedure and Evidence (“Rules”), Vidoje Blagojevic (“Applicant”) has applied to have Judges Schomburg, Mumba, and Agius of Trial Chamber II disqualified from hearing his case because of actual bias and the appearance of bias. Because one of the Judges Blagojevic seeks to have disqualified, Judge Schomburg, is the Presiding Judge of the Chamber, the matter has been referred to the Bureau.1 For the reasons given below, the Bureau denies the application.


  2. An amended indictment of Blagojevic was unsealed on 10 August 2001. He requested provisional release, and on 22 July 2002 Trial Chamber II, composed of the Judges who are the subjects of the present Application, denied the motion.2 Blagojevic appealed the denial, and the Appeals Chamber quashed the decision and remanded the matter to the Trial Chamber.3 The Appeals Chamber found that, contrary to one of the Appeals Chamber’s earlier decisions, the Trial Chamber had improperly refused to consider the guarantee given by Republika Srpska concerning Blagojevic’s return to the Tribunal.4 It directed the Trial Chamber to reconsider its decision, taking the Republika Srpska guarantee into account.5 On remand, the Trial Chamber again denied the request for provisional release,6 and Blagojevic again appealed the denial. The Appeals Chamber found that the Trial Chamber “did not comply with the direction to take the Republika Srpska guarantee into account in its reconsideration of Blagojevic’s application for provisional release.”7 It observed that “it is unnecessary for the purposes of this appeal to determine why the Trial Chamber failed to comply with that direction. It is sufficient to say that the failure of the Trial Chamber to comply with the direction has led to an unfortunate and wholly unnecessary delay in reaching a proper conclusion in relation to the liberty of Blagojevic.”8 Rather than remanding the matter yet again, the Appeals Chamber resolved the matter itself, finding that “in light of the finding already made Sby the Trial ChamberC that Blagojevic’s own personal undertaking is not sufficient to demonstrate that he will appear for trial, the Appeals Chamber is not satisfied that he will do so even when the valid guarantee from Republika Srpska is taken into account.”9

  3. Blagojevic contends that the Trial Chamber’s repeated failure to follow the governing decision of the Appeals Chamber concerning the significance of the Republika Srpska guarantee demonstrates both actual bias and an improper appearance of bias. Regarding actual bias, he states:

    18. The history of the provisional release proceedings establishSesC that the Trial Chamber is: a. unwilling to be bound by the rulings of the Appeals Chamber; b. unwilling to comply with rulings of the Appeals Chamber; c. unwilling to accept the Republika Srpska as a legitimate State capable of providing guarantees, though it had accepted guarantees from the Federation of Bosnia and Herzegovina; d. unwilling at least as to the issue of provisional release, to act expeditiously; and e. unwilling to afford Mr. Blagojevic, at all stages of the proceedings, his fair trial rights.

    19. Mr. Blagojevic asserts that there is a sufficient basis to establish actual bias. The Trial Chamber, for whatever reason, simply and categorically has refused to follow the law, even after being directed and publicly reproached. The findings of the Appeals Chamber on this point are clear, unequivocal, and final. Thus, while no concrete reasons are discernible for the Trial Chamber’s capricious and obdurate behavior, it begs the question: why is the Trial Chamber so adamantly opposed to following the decisions and directions of the Appeals Chamber – that it is unequivocally bound by – when it comes to the issue of provisional release of Mr. Blagojevic?10

    Concerning the appearance of bias, he asserts:

    19. Further, when considering the circumstances, certain plausible inferences can be drawn, all of which demonstrate the existence of an unacceptable appearance of bias. How can any accused before the Tribunal have any confidence in the Trial Chamber that will hear and decide his case, knowing that during the pre-trial stage of the proceedings, the Trial Chamber not only refused to apply the law that it was bound to apply, but moreover, it had repeatedly refused to abide by the directions of the Appeals Chamber, to which it was and remains accountable.11

  4. The Prosecution offers two responses to Blagojevic’s claims. As a preliminary matter, it seeks the dismissal of Blagojevic’s application on the ground that it should not be filed pursuant to Rule 15(B), but instead should be submitted as a motion to the Trial Chamber under Rule 73. 12 The Prosecution contends that applications for disqualification under Rule 15(B) should be limited to those based on the grounds mentioned expressly in Rule 15(A ), namely circumstances “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.” Because Blagojevic’s application rests not on these grounds but instead on the challenged Judges’ decisions in his own case, Rule 15(B) does not apply.13 The Prosecution also argues that allowing disqualification motions to proceed under Rule 73, will, particularly for those arising at the pre-trial stage, serve “the interests of judicial economy and justice” by avoiding the possibility of having a claim of disqualification ruled on twice, once by the Bureau and once by the Appeals Chamber when the same issue may be raised on appeal from the Trial Chamber’s Judgement.14

  5. On the merits, the Prosecution argues that the Trial Chamber’s decisions do not substantiate the Applicant’s charges of actual or apparent bias.15 The Prosecution notes that the Appeals Chamber ultimately agreed with the Trial Chamber that Blagojevic’s request for provisional release should be denied. And, in an effort to show that the Trial Chamber has not displayed a pattern of refusing to follow the Appeals Chamber’s decisions, it offers at least one example in which the Trial Chamber, over the objection of the Prosecution, certified a question for interlocutory appeal.


  6. Article 21(2) of the Statute guarantees defendants “a fair and public hearing,” and, as the Appeals Chamber of this International Tribunal (“ICTY”) has recognized, “an integral component” of the fair trial guarantee is “the fundamental human right to be tried before an independent and impartial tribunal.”16 Article 13(1) of the Statute accordingly provides, in relevant part, that judges of the Tribunal “shall be persons of high moral character, impartiality and integrity.”

  7. Rule 15(A) of the Rules, governing disqualification of judges, provides, in relevant part, that “SaC Judge may not sit on a trial or appeal in a case in which the Judge has a personal interest or concerning which the Judge has had any association which might affect his or her impartiality.” Rule 15(B) authorizes “SaCny party ” to apply to the Presiding Judge of a Chamber for the disqualification of a Judge of that Chamber “upon the above grounds.”

  8. In interpreting and applying the impartiality requirement of the Statute and the Rules, the Appeals Chamber of the ICTY has set out the following standards:

    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.17

  9. Before considering the merits of the Applicant’s motion, the Bureau must consider the Prosecution’s preliminary objection that the motion should be submitted to the Trial Chamber under Rule 73 rather than to the Bureau under Rule 15. The Prosecution’s arguments have some force. It is true that, narrowly construed, the terms of Rules 15(A) and 15(B) might most naturally be read as excluding disqualification motions based on the conduct of the Judge in the very case in which the disqualification is sought.18 And while Presiding Judges and the Bureau have repeatedly treated actions by the challenged Judge in another judicial or administrative proceeding as constituting an “association” within the meaning of Rule 15(A),19 the Bureau is unaware of any example in the ICTY’s case law in which a Presiding Judge or the Bureau has ruled on a disqualification motion grounded on the conduct of the challenged Judge in the proceeding in which the disqualification is sought. Moreover, as the Prosecution points out, it may be more efficient in some cases to ensure that a disqualification motion reaches the Appeals Chamber early on via interlocutory appeal rather than leaving the issue, already addressed by the Presiding Judge or the Bureau, to be addressed again in the appeal from the Trial Chamber’s Judgement.

  10. Nonetheless, the Bureau ultimately finds the Prosecution’s arguments unconvincing. First, in the Bureau’s view, the ICTY Appeals Chamber has not interpreted Rule 15 narrowly, in the manner suggested by the Prosecution, but has instead interpreted Rule 15 broadly as co-terminous with the statutory requirement of impartiality and thus as including within its scope all the possible bases for disqualification noted in paragraph 8 of this decision. In Furundzija, the Appeals Chamber did devote much of its discussion to the statutory requirement of impartiality. But then, having set out the encompassing standards of impartiality mentioned in paragraph 8 above, it quoted Rule 15(A) in full and stated: “The Appeals Chamber is of the view that Rule 15(A) falls to be interpreted in accordance with the... preceding principles[,]” i.e., those outlined in paragraph 8 above.20 Similarly, in Celebici, the Appeals Chamber characterized the statutory requirement of impartiality as being “reflected in Rule 15(A).”21 Citing the Furundzija Appeals Chamber Judgement’s elaboration of the broad standards noted in paragraph 8 above, it stated that “[t]his Rule has been interpreted by the Tribunal as encompassing circumstances establishing both actual bias and an appearance or a reasonable apprehension of bias.”22

  11. Second, this interpretation of Rule 15(A) has apparently been endorsed by the Bureau of the International Criminal Tribunal for Rwanda (“ICTR”), whose Rule 15 (A) is, in relevant part, indistinguishable from the ICTY’s.23 In Bagosora, the ICTR Bureau did not hesitate to adjudicate a disqualification application made pursuant to Rule 15 in which the basis for motion was the challenged judges’ conduct in the very proceeding in which the disqualification was sought.24

  12. Third, as the Prosecution implicitly seems to acknowledge,25 while there might be some logic, in terms of judicial economy, to distinguish procedural avenues for disqualification motions based on when in the course of the proceedings the motion is raised, there would seem to be little logic to distinguishing based on the substantive basis for the motion.

  13. The Bureau thus turns to the merits of Blagojevic’s Application. As for actual bias, what both the ICTY and ICTR Appeals Chambers have said with respect to a claim of appearance of bias applies with equal force: “[T]here is a presumption of impartiality which attaches to a Judge.... [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 [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.”26

  14. The Applicant here has failed to rebut that presumption. While the Bureau would not rule out entirely the possibility that decisions rendered by a Judge or Chamber by themselves could suffice to establish actual bias, it would be a truly extraordinary case in which they would. This is not such an extraordinary case. The Trial Chamber’s apparent intransigence in the face of the Appeals Chamber’s express direction on remand is unfortunate, but the Bureau does not find in the Trial Chamber’s conduct evidence of bias against the Applicant. A more likely explanation for the Trial Chamber’s actions readily suggests itself. Having reviewed the series of decisions in question, the Bureau is of the view that the Trial Chamber’s behavior resulted from its disagreement with the Appeals Chamber on a point of law about which reasonable jurists could certainly differ – namely, the status of guarantees from Republika Srpska – and its inadequate appreciation of the binding effect of Appeal Chamber decisions on Trial Chambers.27 The Trial Chamber’s refusal to take completely to heart the binding character of Appeals Chamber decisions is unfortunate, but the Bureau finds no evidence of bias against the applicant in that refusal.

  15. In the Tribunal’s case law, as noted above, there are two possible grounds for establishing an improper appearance of bias. The applicant bases his claim on the second of those grounds. He claims that “a reasonable observer, properly informed” would “reasonably apprehend bias” on the part of Judges Schomburg, Mumba, and Agius. For reasons similar to those leading to the Bureau’s rejection of the applicant’s charge of actual bias, the Bureau also finds his charge of improper appearance of bias unconvincing. The Bureau finds that a reasonable observer, properly informed, would share its conclusion that the Trial Chamber’s conduct flowed not from bias against the Applicant but from disagreement with the Appeals Chamber over a legal issue and inadequate appreciation of the principle that Appeals Chamber decisions are binding on Trial Chambers. In this instance, those views led the Trial Chamber to a decision against the Applicant (a decision whose result, it should be noted, the Appeals Chamber ultimately affirmed.) But disagreement with the Appeals Chamber on a point of law and a misunderstanding of the binding character of its decisions might well have led the Trial Chamber in another instance to a conclusion favoring the Applicant. Even when a Trial Chamber disregards an Appeals Chamber’s decision, it would take a more extended pattern of decisions uniformly favoring one party before the Bureau could find that a reasonable observer could reasonably apprehend bias against the other party.

  16. The application is denied.28


Done in English and French, the English text being authoritative.

Dated 19 March 2003,
At The Hague,
The Netherlands.

Judge Theodor Meron

[Seal of the Tribunal]

1 - Rule 15(B) provides: “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 upon 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.” (emphasis added). For an example of an application directed against a Presiding Judge and referred to the Bureau, see Prosecutor v. Kordic and Cerkez, IT-95-14/2-PT, Decision of the Bureau, 4 May 1998. Judge Schomburg, as the Presiding Judge of Trial Chamber II, normally sits as a member of the Bureau. See Rule 23(A). Because the application under review is directed against him, the Bureau decided, pursuant to Rule23 (E), to replace Judge Schomburg with Judge Jorda for the consideration of the application. Rule 23(E) provides that “[i]f any member of the Bureau is unable to carry out any of the functions of the Bureau, these shall be assumed by the senior available Judge determined in accordance with Rule 17.” Judge Jorda is the senior available judge.
2 - Decision on Vidoje Blagojevic’s Application for Provisional Release, IT-02-60-PT, 22 July 2002.
3 - Decision on Provisional Release of Vidoje Blagojevic and Dragan Obrenovic; Separate Opinion of Judge David Hunt on Provisional Release of Vidoje Blagojevic and Dragan Obrenovic; and Declaration of Judge Shahabuddeen, IT-02-60-AR65 & IT-02060-AR65.2, 3 October 2002.
4 - Id., paras. 6-7.
5 - Id., para. 8.
6 - Decision on Vidoje Blagojevic’s Application for Provisional Release, IT-02-60-PT, 19 November 2002.
7 - Decision on Provisional Release Application of Blagojevic, IT-02-60-AR65.4, 17 February 2003, para. 14.
8 - Id.
9 - Id., para. 18.
10 - Vidoje Blagojevic’s Motion to Disqualify the Trial Chamber (Judges Sch[o]mburg, Mumba and Agius) on the Grounds of Actual Bias and an Unacceptable Appearance of Bias & Request for This Matter to Be Referred to the Bureau for its Determination & Request for an Expedited Hearing, IT-02-60-PT, 26 Feb. 2003, paras. 18-19 (“Application”).
11 - Id., para. 20.
12 - Prosecution’s Response to Vidoje Blagojevic’s Motion to Disqualify the Trial Chamber, IT-02-60-PT, 12 March 2003, paras. 9-18 (“Respone”).
13 - Id., paras. 16-17.
14 - Id., para. 9
15 - Id., paras. 19-27.
16 - Furundzija Appeals Chamber Judgement, para. 177 & n.239.
17 - Id., para. 189.
18 - This interpretation would be consistent with the so-called extrajudicial source doctrine in the United States, according to which actions by a judge in the proceeding at hand are considered insufficient by themselves, as a matter of law, to support the judge’s disqualification from that proceeding. The doctrine has in fact been relaxed recently by the Supreme Court of the United States. See Litecky v. United States, 510 U.S. 540, 554-56 (1994).
19 - See Prosecutor v. Brdanin & Talic, IT-99-36-PT, Decision on Application of Momir Talic for the Disqualification and Withdrawal of a Judge, 18 May 2000; Prosecutor v. Delalic, Mucic, Delic & Landzo, IT-96-21-T, Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 Oct. 1999; Prosecutor v. Kordic & Cerkez, IT-95-14/2-PT, Decision, 4 May 1998.
20 - Furundzija Appeals Chamber Judgement, para. 191.
21 - Celebici Appeals Chamber Judgement, para. 682.
22 - Id. (emphasis added).
23 - Rule 15(A) of the Rules of Procedure and Evidence of the ICTR provides, in relevant part: “A judge may not sit at a trial or appeal 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. He shall in any such circumstance withdraw from that case.”
24 - Prosecutor v. Bagosora, ICTR-98-41-I, Determination of the Bureau Pursuant to Rule 15(B), 20 Feb. 2002.
25 - See Response, para. 9.
26 - Furundzija Appeals Chamber Judgement, paras. 196-197; see Akayesu Appeals Chamber Judgement, para. 91; cf, e.g., Castillo Algar v. Spain, 1998 EHRR xxx (28 Oct. 1998).
27 - The Appeals Chamber established the binding effect of its decisions on Trial Chambers nearly three years ago in the Aleksovski Appeals Chamber Judgement, para. 113.
28 - Although the Applicant mentions a request for an expedited hearing in the title of the Application, he does not make the request in the body of the Application. See esp. Application, para. 28. To the extent that the Application requests a hearing, the request is denied.