1 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 Dec. 1998 ("the Judgement").
2 On 6 April 1998, the Appellant filed "Defendant's Motion for Leave to File Instanter His Motion to Dismiss Counts 13 & 14 of the Indictment Based on Defects in the Form of the Indictment (Vagueness), Lack of Subject Matter Jurisdiction, and Failure to Establish a Prima Facie Case", arguing that the Prosecutor had failed to submit facts supporting a theory of liability under Article 7(1) that the Appellant directly and substantially facilitated the rape of Witness A. On 29 April 1998, the Trial Chamber issued a Decision denying the Appellant's Motion and a further decision ordering the Prosecutor to file a supplementary document specifying the factual and legal bases upon which the Prosecutor would rely at trial.
3 The specific charges against the Accused were based on the factual allegations contained in paragraphs 25 and 26 of the Amended Indictment.
4 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Confidential Decision, 15 June 1998 ("Confidential Decision"), p. 2.
5 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-AR73, Decision on Defendant's Request for Leave to Appeal Trial Chamber II's Order of 16 July 1998, 24 Aug. 1998.
6 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Decision on Proposed Calling of Mr. Enes Surkovic as Witness, 13 Oct. 1998.
7 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1, Decision on Post-Trial Application by Anto Furundzija to the Bureau of the Tribunal for the Disqualification of Presiding Judge Mumba, Motion to Vacate Conviction and Sentence, and Motion for a New Trial, 11 Mar. 1999.
8 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Order of the President Assigning a Judge to the Appeals Chamber, 7 Mar. 2000 (the original French version was filed on 28 Feb. 2000).
9 Transcript of hearing on appeal in Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, 2 March 2000 (hereafter pages from the transcript are referred to as "T (2 March 2000)"; all transcript page numbers referred to in the course of this Appeals Judgement are from the unofficial, uncorrected version of the English transcript. Minor differences may therefore exist between the pagination therein and that of the final English transcript released to the public).
10 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Defendant's Amended Appellate Brief [Public Version], 23 June 2000; Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Appellant's Reply [Public Version], 23 June 2000.
11 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Prosecution Submission of Public Version of Confidential Respondent's Brief of the Prosecution Dated 30 Sept. 1999, 28 June 2000.
12 Appellant's Amended Brief, pp. 1-3 and T. 9 - 10 (2 March 2000).
13 Appellant's Amended Brief, p. 158.
14 Ibid., and T. 190 (2 March 2000).
15 Appellant's Amended Brief, p. 158.
16 Appellant's Reply, p.3.
17 Ibid., p. 5.
18 T. 11 (2 March 2000).
19 T. 12 (2 March 2000).
20 T. 167 (2 March 2000).
21 Prosecutor's Response, para. 2.2.
22 Ibid., para. 2.6.
23 Ibid., para. 2.7.
24 Ibid., para. 2.9.
25 Ibid., para. 2.10.
26 Ibid.
27 Ibid., para. 2.8.
28 T. 108 - 109 (2 March 2000).
29 T. 111 - 112 (2 March 2000).
30 Prosecutor's Response, para. 2.11.
31 International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Neighbouring States between 1 January and 31 December 1994 ("the ICTR").
32 Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, 6 Apr. 2000, para. 22.
33 Black's Law Dictionary (7^th ed., St. Paul, Minn. 1999).
34 Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999 ("the Tadic Appeals Judgement").
35 Tadic Appeals Judgement, para. 64.
36 Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 ("the Aleksovski Appeals Judgement"), para. 63.
37 Appellant's Reply, p. 4.
38 Ibid., p. 8.
39 Ibid. (citing Tadic Appeals Judgement, para. 174).
40 Appellant's Amended Brief, pp. 49-50, 75 and T. 9 - 10 (2 March 2000).
41 Appellant's Amended Brief, pp. 56-57.
42 Ibid., pp. 56-60 and T. 9 (2 March 2000).
43 Appellant's Amended Brief, pp. 59-63.
44 T. 30 (2 March 2000).
45 Appellant's Amended Brief, p. 57 and T. 36 - 7 (2 March 2000).
46 Appellant's Amended Brief, pp. 59-60.
47 Ibid., p. 63 (citing Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Decision, 12 June 1998, p. 2).
48 Appellant's Amended Brief p. 64 (citing Confidential Decision, 15 June 1998, p. 2) and T. 47 (2 March 2000).
49 Appellant's Amended Brief, p. 64 and T. 49 (2 March 2000).
50 T. 54 (2 March 2000).
51 European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 ("the European Convention on Human Rights").
52 T. 76 (2 March 2000).
53 T. 79 (2 March 2000); Appellant's Amended Brief, pp. 65-72, and in particular pp. 70-71 where the jurisprudence of the European Court of Human Rights is discussed.
54 Appellant's Amended Brief, pp. 74-75.
55 Ibid., p. 73.
56 Ibid., pp. 72-73 and Appellant's Reply, p. 24.
57 Appellant's Amended Brief, p.73.
58 T. 82 (2 March 2000).
59 Appellant's Reply, pp. 22-24.
60 Ibid., pp. 23-24.
61 Prosecutor's Response, paras. 3.26-3.34.
62 Ibid., para. 3.22 and T. 118 (2 March 2000).
63 Prosecutor's Response, paras. 3.39-3.43.
64 T. 139 - 140 (2 March 2000).
65 Prosecutor's Response, paras. 3.51-3.55.
66 Ibid., paras. 3.54-3.55.
67 Ibid., paras. 3.75-3.77.
68 Ibid., paras. 3.78, 3.83 - 3.87. See also Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Decision, 16 July 1998.
69 Prosecutor's Response, paras. 3.82-3.83.
70 Ibid., paras. 3.82-3.90.
71 Ibid., paras. 3.80-3.83.
72 Ibid., and paras. 3.87-3.89.
73 With the filing of the Amended Indictment the count based on Article 2 of the Statute, together with any associated allegations, was also withdrawn.
74 Amended Indictment, para. 25.
75 Judgement, para. 80.
76 Confidential Decision, p.2. See also Judgement, paras. 18 and 81.
77 Judgement, paras. 264 - 269.
78 Appellant's Reply, p. 39.
79 Judgement, para. 83.
80 Ibid., para. 125.
81 Ibid., para. 264.
82 Ibid., para. 125.
83 Ibid., para. 116.
84 See Case of Ruiz Torija v. Spain, Judgment of 9 December 1994, Publication of the European Court of Human Rights ("Eur. Ct. H. R."), Series A, vol. 303, para. 29.
85 Case of Van de Hurk v. The Netherlands, Judgment of 19 April 1994, Eur. Ct. H. R., Series A, vol. 288, para. 61.
86 Judgement, paras. 85 and 87.
87 Ibid., para. 116.
88 Rule 85 of the Rules provides that evidence at trial shall be presented in a certain sequence unless otherwise directed by the Trial Chamber in the interests of justice.
89 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Decision, 16 July 1998, para. 17 (original emphasis).
90 Ibid., p. 8.
91 Appellant's Amended Brief, p. 78.
92 Ibid.
93 Ibid., pp. 78-80.
94 Ibid., p. 80 (citing Prosecutor v. Dusko Tadic, Opinion and Judgment, Case No. IT-94-1-T, 7 May 1997, para. 546).
95 Ibid., pp. 82-83.
96 Judgement, para. 162.
97 Appellant's Amended Brief, p. 84.
98 Ibid., pp. 86-91.
99 Ibid., pp. 91-94 (referring to the Judgement, para. 113).
100 Ibid., pp. 95-96.
101 Ibid., p. 98.
102 Ibid., p. 99.
103 Ibid., pp. 99-100.
104 Ibid., p. 100.
105 Ibid.
106 Ibid., p. 101.
107 Prosecutor's Response, paras. 3.44-3.55. See supra, para. 55.
108 Prosecutor's Response, para. 4.9.
109 Ibid., para. 4.17.
110 Ibid., para. 4.2.
111 Ibid., paras. 4.4-4.5.
112 Ibid., paras. 4.18-4.20.
113 Ibid., paras. 4.22-4.27.
114 Ibid., para. 4.28 (citing the Tadic Appeals Judgement, paras. 189-193).
115 Ibid., paras. 4.30-4.31 (citing the Tadic Appeals Judgement, para. 227).
116 Ibid., paras. 4.32-4.36 (citing the Tadic Appeals Judgement, paras. 190-206, 220).
117 Ibid., paras. 4.34-4.35.
118 Ibid., para. 4.36.
119 Ibid., para. 4.37.
120 Ibid., para. 4.37.
121 Ibid., paras. 4.38-4.39.
122 Ibid., para. 4.44.
123 Ibid., paras. 4.50-4.54.
124 Ibid., para. 3.61.
125 Ibid., para. 4.9.
126 Ibid., paras. 4.59-4.60 (citing Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Opinion and Judgment, 7 May 1997, paras. 689-692; Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement, 16 Nov. 1998 ("the Celebici Judgement"), paras. 327-328).
127 Ibid., para. 4.72.
128 Ibid., paras. 4.74-4.75.
129 Appellant's Reply, pp. 24-26.
130 Ibid., p. 25.
131 Ibid., p. 26.
132 Ibid., pp. 26-27.
133 Ibid., pp. 26-38.
134 Tadic Appeals Judgement, para. 64.
135 Judgement, para. 127.
136 Prosecutor's Response, para. 3.59.
137 Ibid., para. 3.61.
138 Judgement, para. 87.
139 Ibid., paras. 86-87.
140 Ibid.
141 Ibid., para. 88.
142 Appellant's Amended Brief, p.79.
143 Prosecutor's Response, paras. 4.8-4.9 and 4.16.
144 Judgement, para. 114.
145 Ibid., para. 78.
146 Ibid.
147 Ibid., para. 77.
148 Ibid., para. 83.
149 Ibid., para. 86.
150 Appellant's Amended Brief, pp. 84-86.
151 Prosecutor's Response, paras. 4.23-4.25.
152 Judgement, para. 161. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly on 10 December 1984 and entered into force on 26 June 1987.
153 Article 1 of the Torture Convention defines torture in the following terms: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
154 Judgement, para. 162.
155 Ibid., para. 264.
156 Ibid.
157 Appellant's Amended Brief, p.84.
158 Ibid., p.85.
159 Ibid., p.89.
160 Prosecutor's Response, para. 4.31.
161 Judgement, para. 216 (referring to the Rome Statute of the International Criminal Court, adopted at Rome on 17 July 1998, U.N. Doc. A/CONF.183/9 ("the Rome Statute")).
162 Ibid.
163 Ibid., para. 252 (original emphasis).
164 Ibid., para. 257.
165 Tadic Appeals Judgement, para. 227.
166 Judgement, paras. 124-130.
167 Judgement, paras. 108-109.
168 Tadic Appeals Judgement, para. 64.
169 Judgement, paras. 96-109.
170 Appellant's Amended Brief, pp. 95-97.
171 Ibid., pp. 97-101.
172 Ibid., p. 102.
173 Prosecutor's Response, para. 4.60.
174 Ibid., para. 4.63.
175 Ibid., para. 4.73.
176 Judgement, para. 273.
177 Ibid., para. 266.
178 Appellant's Amended Brief, pp. 103-104.
179 Ibid., pp. 104-105.
180 Ibid., pp. 105-106.
181 Prosecutor's Response, para. 5.11.
182 Ibid., para. 5.8.
183 Ibid., para. 5.9.
184 Ibid., para. 5.10.
185 Ibid., para. 5.14.
186 Ibid., para. 5.17 (citing Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, Case No. IT-97-25-PT, 24 Feb. 1999, para. 12; Prosecutor v. Kvo~ka et al., Case No. IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999; and also Prosecutor v. Tadic, Case No. IT-94-1-PT, Decision on the Defence Motion on the Form of the Indictment, 14 Nov.1995, paras. 6-8).
187 Ibid., para. 5.21.
188 Ibid., para. 5.24.
189 Ibid., paras. 5.25-5.26.
190 Ibid., para. 5.30.
191 Ibid., para. 5.31.
192 Ibid., paras. 5.32-5.38.
193 Ibid., paras. 5.39-5.40.
194 Appellant's Reply, pp. 39-40.
195 Ibid., p. 40.
196 Ibid., p. 41.
197 Ibid., p. 44.
198 Judgement, para. 81 (citing the Confidential Prosecutor's Reply to Trial Chamber's Order, 1 May 1998, filed in this case).
199 Ibid.
200 Ibid., paras. 124-125.
201 Ibid., para. 264.
202 Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb. 1999, para. 12. See also Prosecutor v. Kvo~ka et al., Case No. IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr. 1999, para. 14.
203 Judgement, para. 65.
204 Ibid., para. 125.
205 Ibid., para. 264.
206 Ibid., para. 125.
207 Appellant's Amended Brief, pp.104-105.
208 Cf. Judgement, para. 51.
209 Cf. Ibid., para. 53.
210 Cf. Ibid., para. 55.
211 Cf. Ibid., para. 62
212 Ibid., para. 65.
213 Appellant's Amended Brief, p. 105.
214 Judgement, para. 262.
215 Supra, para. 153.
216 The Appellant states that Judge Mumba's term with the UNCSW was from 1992-1995 and this is not disputed by the Prosecutor (Appellant's Amended Brief, p. 122 and Prosecutor's Response, para. 6.28).
217 Established by the United Nations Economic and Social Council ("ECOSOC") Resolution 11 (II) on 21 June 1946, Section 1 provides that "[t]he functions of the Commission shall be to prepare recommendations and reports to the Economic and Social Council on promoting women's rights in political, economic, social and educational fields. The Commission shall also make recommendations to the Council on urgent problems requiring immediate attention in the field of women's rights." The Commission was subsequently enlarged by ECOSOC Resolutions 1987/22, 1987/23, and 1989/45.
218 Both the Appellant and Respondent refer to several of these resolutions including, ECOSOC Resolution 38/9, ECOSOC Resolution 37/3 and ECOSOC Resolution 39/4.
219 Critical Area D (Violence against Women), Critical Area E (Women and armed conflict) and Critical Area I (Human Rights of Women). United Nations Economic and Social Council, Commission on the Status of Women; Report of the Commission on the Status of Women on its Fortieth Session, U.N. Doc. E/199/27 (1996).
220 By orders of 10 and 11 November 1998, the Trial Chamber granted leave for two amicus curiae briefs to be filed, pursuant to Rule 74 of the Rules, which provides that, "[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation or person to appear before it and make submissions on any issue specified by the Chamber." (Judgement, paras. 35 and 107).
221 Prosecutor's Response, para. 6.29.
222 United Nations Division for the Advancement of Women, Report of the Expert Group Meeting, Toronto, Canada (9 - 12 November 1997), EGM/GBP/1997/Report.
223 Appellant's Amended Brief, p. 121 and Appellant's Reply, pp. 46-47. 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."
224 Appellant's Reply, p. 46.
225 Ibid., p. 48 and Appellant's Amended Brief, p. 121.
226 Appellant's Reply, p. 48.
227 Ibid., p. 49.
228 Appellant's Amended Brief, p. 136.
229 Ibid., p.138.
230 Prosecutor's Response, para. 6.33.
231 Ibid., paras. 6.50-6.54.
232 Ibid., para. 6.55.
233 Ibid., paras. 6.54-6.55.
234 Appellant's Amended Brief, p. 121. The Appellant raised the matter before the Bureau by filing on 3 February 1999 the "Defendant's Post Trial Application to the Bureau of the Tribunal for the Disqualification of Presiding Judge Mumba, Motion to Vacate Conviction and Sentence, and Motion for a New Trial."
235 Tadic Appeals Judgment, paras. 247 and 281.
236 E.g., Yearbook of the International Tribunal (1997) stated that Judge Mumba was a member of the UNCSW from 1992-1995 (pp. 26-27).
237 Filed on 28 June 1999.
238 (Emphasis added). Article 13(1) provides: "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." See also Arts. 2 and 11 of Statute of the International Tribunal for the Law of the Sea (Annex VI of United Nations Convention on the Law of the Sea of 10 December 1982); Art. 19 of Statute of the Inter-American Court of Human Rights (adopted by Resolution 448 by the General Assembly of the Organisation of American States at its ninth regular session held in La Paz, Bolivia, October 1979); Arts. 36(3)(a), 40 and 41 of the Rome Statute.
239 Under Article 21(2) of the Statute, the accused is entitled to "a fair and public hearing" in the determination of the charges against him. Paragraph 106 of the Report of the Secretary General provides that "[i]t is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognised standards are, in particular, contained in Article 14 of the International Covenant on Civil and Political Rights." (Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808(1993)). Article 14(1) of the ICCPR provides in relevant part: "In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." The fundamental human right of an accused to be tried before an independent and impartial tribunal is also recognised in other major human rights treaties. The Universal Declaration of Human Rights provides in Art. 10 that "[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the full determination of his rights and obligations of any criminal charge against him". Art. 6(1) of the European Convention on Human Rights protects the right to a fair trial and provides inter alia that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Art. 8(1) of the American Convention provides that "[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law". Art. 7(1)(d) of the African Charter on Human and Peoples' Rights provides that every person shall have the right to have his case tried "within a reasonable time by an impartial court or tribunal."
240 In each case, application has been made under Rule 15(B) of the Rules and considered by either the Presiding Judge of the Chamber in question who confers with the Judge in question, or if necessary, the matter is determined by the Bureau. See for example, Prosecutor v. Zejnil Delalic et al., Case No. 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, 1 Oct. 1999; Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Decision of the Bureau on Motion on Judicial Independence, 4 Sept. 1998; Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-PT, Decision of the Bureau, 4 May 1998; Prosecutor v. Radoslav Br|anin and Momir Talic, Case No. IT-99-36-PT, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge, 18 May 2000 ("Talic Decision").
241 Talic Decision, para. 15.
242 Appellant's Reply, p. 48.
243 Piersack v. Belgium, Judgment of 21 September 1982, Eur. Ct. H. R., Series A, No. 53 ("Piersack"), para. 30. This test has been confirmed and applied in De Cubber v. Belgium, Judgment of 26 October 1984, Eur. Ct. H. R., Series A, No.86 ("De Cubber"), para. 24; Hauschildt v. Denmark, Judgment of 24 May 1989, Eur. Ct. H. R., Series A, No. 154 ("Hauschildt"), para. 46; Bulut v. Austria, Judgment of 22 February 1996 Eur. Ct. H. R, Series A, No.5 ("Bulut"), para 31; Castillo Algar v. Spain, Judgment of 28 October 1998, Eur. Ct. H. R., Series A, No.95 ("Algar"), para. 43; Incal v. Turkey, Judgment of 9 June 1998, Eur. Ct. H. R , Series A, No.78 ("Incal"), para. 65.
244 See Le Compte, Van Leuven and de Meyere, Judgment of 27 May 1981, Eur. Ct. H. R., Series A, No. 43, para. 58 ("Le Compte"); Piersack, para. 30; De Cubber, para. 25. In fact, there has yet to be a case in which a violation of Article 6 has been found under this element of the test.
245 See Sramek v. Austria, Judgment of 22 October 1984, Eur. Ct. H. R., Series A, No.84, para.42; Campbell and Fell v. United Kingdom, Judgment of 28 June 1984, Eur. Ct. H. R., Series A, No.80, para. 85.
246 Hauschildt, para. 48.
247 Ibid. (emphasis added). See also Algar, para. 45; Incal, para. 71 and Bulut, para. 33.
248 R v. Gough, [1993] A.C. 646 at 661.
249 Ibid.
250 Webb v. The Queen (1994) 181 CLR 41, 30 June 1994. The court reasoned that "public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question."
251 R.D.S. v. The Queen (1997) Can. Sup. Ct, delivered 27 September 1997.
252 President of the Republic of South Africa and Others v. South African Rugby Football Union and Others, Judgement on Recusal Application, 1999 (7) BCLR 725 (CC), 3 June 1999 ("South African Rugby Football Union").
253 Ibid., para. 48.
254 U.S. v. Bremers et al., 195 F. 3d 221, 226 (5^th Cir. 1999). Disqualification is governed by 28 USCS, Section 455 (2000), which provides that a Judge shall disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." The Supreme Court has stated that "[t]he goal of section 455(a) is to avoid even the appearance of impartiality." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988) (citing Hall v. Small Administration, 695 F.2d 175, 179 (5^th Cir. 1983).
255 See e.g., Arts. 22-24, German Code of Criminal Procedure (Strafprozeβordnung), Art 668 of the French Code de Procédure Pénale, Arts. 34-36, Italian Codice de Procedura Penale, and Arts. 512-519 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering). It should also be noted that as a general rule, these civil law systems also consider actual bias as being grounds for disqualification.
256 Sections 13 and 14 of the Swedish Code of Judicial Procedure (1998).
257 In the Talic Decision, it was found that the test on this prong is "whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgement) would be that [the Judge in question]... might not bring an impartial and unprejudiced mind" (para. 15).
258 R.D.S. v. The Queen (1997) Can. Sup. Ct., delivered 27 September 1997.
259 Rule 14 also provides that a Judge must make a solemn declaration before taking up duties, in the following terms: "I solemnly declare that I will perform my duties and exercise my powers as a Judge of the International Tribunal...honourably, faithfully, impartially and conscientiously."
260 Supra, para. 180.
261 R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) [1999] 1 All ER 577 ("Pinochet").
262 Judge Mumba served on the UNCSW between 1992 and 1995.
263 Pinochet, p. 589.
264 R v. Sussex Justices ex parte McCarthy [1924] 1 KB 256 at p. 259.
265 Appellant's Amended Brief, p. 127.
266 See e.g., Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-PT, Decision of the Bureau, 4 May 1998, p. 2.
267 South African Rugby Football Union, para. 48.
268 Mason J, in Re JRL; Ex parte CJL (1986) CLR 343 at 352. Adopted in the subsequent Australian High Court decision in Re Polities; Ex parte Hoyts Corporation Pty Ltd (1991) 65 ALJR 444 at 448.
269 Appellant's Amended Brief, pp. 122 and 135.
270 Prosecutor's Response, paras. 6.13-6.15.
271 Resolution adopted 21 June 1946, section 2(a).
272 Ibid. Section 2(b) provides that "[W]ith a view to securing a balanced representation in the various fields covered by the Commission, the Secretary-General shall consult with the governments so selected before the representatives are finally nominated by these governments and confirmed by the Council."
273 E.g., Art. 17 of the Convention on the Elimination of Discrimination against Women (entering into force on 3 September 1981) which calls for the establishment of the Committee on the Elimination of Discrimination against Women to monitor the above, states that the "experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity..." Similarly, such language which expressly provides that members of committees shall act in their personal capacity is found in Art. 43(2) of the Convention on the Rights of the Child establishing the Committee on the Rights of the Child; Art. 8(1) of the International Convention on the Elimination of All Forms of Racial Discrimination establishing the Committee on the Elimination of all forms of Racial Discrimination; Art. 17(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment establishing the Committee against Torture; and Art. 28(3) of the International Covenant on Civil and Political Rights, establishing the Human Rights Committee.
274 Article 1(3) of the UN Charter includes as a purpose of the United Nations: "To achieve international co-operation in solving international problems of an economic, social cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion..." Article 55(c) provides that based on respect for the principle of equal rights and self-determination of peoples, the United Nations will promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion."
275 UN Security Council Resolution 827(1993) (S/RES/827 (1993)). S/RES/798 (1992) directly addressed to crimes against women in Bosnia and Herzegovina and being appalled by the "massive, organised and systematic detention and rape of women" in Bosnia and Herzegovina, condemned it as "acts of unspeakable brutality."
276 S/RES/808 (1993).
277 Prosecutor's Response, para.6.23.
278 South African Rugby Football Union Case, para. 42.
279 Crociani et al. v. Italy, Decisions and Reports, European Commission of Human Rights, vol. 22 (1981) 147, 222.
280 Such a statutory requirement for experience of this general nature is by no means novel to this Tribunal. See e.g., Art. 36 of the Rome Statute; Art. 34 of the American Convention; Art. 39(3) of the European Convention; Art. 2 of the Statute of the International Court of Justice.
281 Appellant's Amended Brief, p. 135.
282 Ibid., p. 122.
283 Appellant's Reply, p. 47. Cf. Celebici Judgement, paras. 478 - 479.
284 Appellant's Amended Brief, p. 116.
285 Ibid.
286 Appellant's Amended Brief, footnote 29.
287 Prosecutor's Response, para. 6.30.
288 Prosecutor's pre-trial Brief, pp. 14-15; transcript of trial proceedings in Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, p. 658 (this reference is from the unofficial, uncorrected version of the English transcript. Minor differences may therefore exist between the pagination therein and that of the final English transcript released to the public).
289 Judgement, para. 174.
290 T. 98 (2 March 2000).
291 T. 93 (2 March 2000).
292 Celebici Judgement, paras. 478 - 479; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, para. 598.
293 Celebici Judgement, para. 476. The Lieber Code of 1863 considered rape by a belligerent to be punishable as a war crime (Instructions for the Government of the United States in the Field by Order of the Secretary of War, Washington D.C., 24 April 1863). Rape was prosecuted as a war crime under Control Council Law No. 10. Rape was also prosecuted as a war crime before the International Military Tribunal in Tokyo, with officials held criminally responsible for war crimes including rape committed by officers under their command.
294 Celebici Judgement, paras. 943 and 965.
295 Article 8(2)(b)(xxii) and Article 8(2)(e)(vi) of the Rome Statute.
296 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 Sept. 1998, para. 596.
297 Ibid., para. 598.
298 Celebici Judgement, para. 479.
299 Judgement, para. 174.
200 Ibid., para. 177.
301 Appellant's Amended Brief, p. 118.
302 Ibid., p. 119.
303 Judgement, para. 107.
304 The Appellant concedes that the amicus curiae briefs did not address the issue of the definition of rape (Appellant's Amended Brief, footnote 29).
305 Judgement, para. 107.
306 Appellant's Amended Brief, p. 139.
307 Ibid., p. 138 and T. 93 - 94 (2 March 2000).
308 T. 94 - 95 (2 March 2000).
309 Appellant's Amended Brief, pp. 140-145 (citing Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Sentencing Judgment, 14 July 1997; Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 7 Oct.1997, para. 20).
310 Prosecutor v. Dusko Tadic, Case No.: IT-94-1-T, Sentencing Judgment, 14 July 1997.
311 Appellant's Amended Brief, pp. 148-149.
312 Ibid., p. 149 and T. 95 - 96 (2 March 2000).
313 Appellant's Amended Brief, p. 150.
314 Appellant's Amended Brief, p. 152.
315 The Appellant refers to the Tadic Sentencing Judgement, Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999 and Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, Sentencing Judgement, 5 Mar. 1998 ("the Second Erdemovic Sentencing Judgement"), respectively.
316 Appellant's Amended Brief, pp. 154-157.
317 Prosecutor's Response, paras. 7.6-7.7.
318 Ibid., para. 7.9.
319 In fact, as of the date of this Judgement, the Appeals Chamber has addressed sentencing in two additional decisions, and in each instance has revised the sentence imposed by the Trial Chamber. See the Tadic Sentencing Appeals Judgement and the Aleksovski Appeals Judgement.
320 See the Second Erdemovic Sentencing Judgement.
321 Prosecutor's Response, paras. 7.11-7.14 and T. 152 (2 March 2000)).
322 Prosecutor's Response, paras. 7.16-7.17 and T. 155 (2 March 2000).
323 Prosecutor's Response, paras. 7.25-7.27 and T. 156 (2 March 2000).
324 Prosecutor's Response, para. 7.28 and T. 159 (2 March 2000).
325 Prosecutor's Response, para. 7.33 and T. 158 (2 March 2000).
326 Prosecutor's Response, paras. 7.34-7.35.
327 Ibid., para. 7.35 and T. 160 (2 March 2000).
328 Prosecutor's Response, para. 7.36.
329 Ibid., para. 7.37.
330 Ibid., para. 7.42-7.45.
331 Ibid., para. 7.46.
332 Ibid., para. 7.48 and T. 162 (2 March 2000).
333 Prosecutor's Response paras. 7.49-7.52 (citing Celebici Judgement, paras. 1285-1286) and T. 154 (2 March 2000).
334 T. 163 (2 March 2000).
335 T. 163-164 (2 March 2000).
336 Ibid.
337 Appellant's Reply, pp. 51-52.
338 Tadic Sentencing Judgement and Prosecutor v. Dusko Tadic, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999.
339 Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, Sentencing Judgement, 29 Nov. 1996, ("the First Erdemovic Sentencing Judgement"), and the Second Erdemovic Sentencing Judgement.
340 Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999.
341 Appellant's Reply, p. 52.
342 Ibid.
343 Appellant's Amended Brief, p. 139.
344 Second Erdemovic Sentencing Judgement.
345 Tadic Sentencing Appeals Judgement.
346 Aleksovski Appeals Judgement.
347 Even including a decision from the ICTR Appeals Chamber (Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, 6 Apr. 2000, which affirmed the sentence imposed by a Trial Chamber), the number of final sentencing decisions from two Tribunals is limited to four.
348 Prosecutor's Response, para. 7.17.
349 Prosecutor's Response, para. 7.6 and T. 149 (2 March 2000).
350 Tadic Sentencing Appeals Judgement, para. 20 (emphasis added). See also Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgement, 6 April 2000, para. 32.
351 Aleksovski Appeals Judgement, para. 187.
352 Appellant's Amended Brief, pp. 140-145.
353 Notably the Tadic Sentencing Judgement and the Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Judgement, 7 Oct. 1997.
354 Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, para. 20.
355 Although the Tadic Sentencing Appeal Judgement was pronounced prior to the oral hearings in this case, counsel for the Appellant did not change this line of argument.
356 Tadic Sentencing Appeals Judgement, para. 69 (emphasis added). Further argument in support of this view was set out in the Separate Opinion of Judge Shahabuddeen in that same judgement. See also Prosecutor v. Dusko Tadic, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robinson, in which Judge Robinson expressed the view that there is no basis for "the conclusion that, as a matter of principle, crimes against humanity are more serious violations of international humanitarian law than war crimes" (ibid., p.10) and Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li, in which Judge Li stated "that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another". Ibid., para. 19.
357 Aleksovski Appeals Judgement, para. 111. See also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, para. 92.
358 See Appellant's Amended Brief, p. 145 -155, and Prosecutor's Response, para. 7.36.
359 Tadic Sentencing Judgement.
360 Second Erdemovic Sentencing Judgement.
361 Appellant's Amended Brief, p. 154.
362 Prosecutor's Response, para. 7.32.
363 Kupreskic Judgement, para. 852.
364 Aleksovski Appeals Judgement, para. 182.
365 Article 24 of the Statute and Rule 101(A) of the Rules.
366 Noted by the Prosecutor at T. 154 (2 March 2000).
367 Aleksovski Appeals Judgement, para. 187.
368 Ibid., para. 190.
369 T. 95 (2 March 2000).