25 October 1999
Judges McDonald (Presiding), Shahabuddeen, Cassese, Jorda and May)

The Issue

The accused submitted a motion pursuant to Rule 151. In their motion, they claimed that three of the appeal Judges had pre-judged one of the issues to be determined in the appeal and should thus be disqualified or recuse themselves2. The basis for that assertion was that one of the grounds of appeal relates to the Trial Chamber's allegedly having been improperly constituted because Judge Odio Benito was a member of that bench and that three Judges sitting in the Appeals Chamber had expressed an opinion on the issue of whether Judge Odio Benito could serve as a Judge after her election to the position of Vice-President of Costa Rica.

The Decision

The Bureau declared that the appellants had failed to demonstrate that the conditions for disqualification of Judges set out in Sub-rule15(A) were satisfied in the present case and that the three Judges were not disqualified from sitting on the appellate proceedings in Celebici.

The Reasoning

On 30 July 1999, the accused filed a motion before the Appeals Chamber entitled "Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves" (hereinafter, «the Motion»). On 10 August 1999, the Prosecutor filed a response3. On 15 and 17 September 1999, two decisions concerning the correct procedure for disposing of the Motion were issued. In the first one, the Presiding Judge remitted the application to the Bureau for consideration4. In the second, the Appeals Chamber disposed of the Motion on grounds of incompetence and made it clear that the Motion should instead be regarded as an application to the Presiding Judge in application of Sub-rule 15(B) and referred to the Presiding Judge's referral of the matter to the Bureau of 15 September 19995.

The Bureau distinguished between two different but inter-connected issues, namely the general requirements for tenure6 and the disqualification/recusation of a Judge in a particular case7. The first issue relates to the question of whether or not a Judge possesses all the necessary requirements for serving as a Judge of the Tribunal. In order to be eligible, a person must possess the requirements set out in Article 13(1) ("positive requirements")8, not exercise any political or administrative function or engage in any other occupation of a professional nature ("negative requirements")9. In cases of doubt or dispute on the question of whether a Judge meets the requirements at issue, the President must attempt to resolve the matter in conference with the Judge. At the request of the Judge or proprio motu, the President may submit the question to the plenary assembly of the judges which, in the exercise of its administrative functions, passes on the matter.

By contrast, the issue of disqualification/recusation is a judicial matter which relates to the right of a Judge to sit in a specific case. Judges may recuse themselves or be disqualified from hearing a particular case when, pursuant to Sub-rule 15(A), they have "a personal interest [in] [...] or [...] any association' with the case 'which might affect [their] impartiality". The issue might be raised by both the Judge concerned or by any party to the proceedings. Decisions on the matter are made by the Presiding Judge of a Chamber or, at the request of the Presiding Judge, by the Bureau10. If the Judge does not fulfil the requirements referred to in Rule 15(A), he or she is disqualified from hearing that particular case, although he or she is fully entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases11. Although this issue is different from the first a certain overlap is possible12.

In the case at hand, the Bureau distinguished between the administrative and judicial functions exercised by the Judges for which disqualification/recusation is sought. The Bureau stated that the Fourteenth and Seventeenth Plenary decisions endorsing the decision of the President by which it was declared that the position of Vice-President of Costa Rica was compatible with the discharge of judicial functions were decisions of an administrative nature and that these decisions were "not made with reference to any specific question as to whether Judge Odio Benito was disqualified from sitting in Celebici."13

"It follows from the above that the three Judges concerned by the Motion for disqualification currently under discussion took part only in the administrative decision [...] concerning the general question of whether [...] Judge Odio Benito was entitled to continue to exercise her functions as a Judge of the International Tribunal. They did not pronounce upon, nor did they contribute to the taking of, any judicial decision on a specific judicial matter [...] [T]he questions of whether Judge Odio Benito should be disqualified from sitting in Celebici on the basis that her election to the position of Second Vice-President of Costa Rica entailed an interest in or an association with that case, thus creating a lack of impartiality [...] was decided [...] was decided by the Bureau, on which none of the three aforementioned Judges was serving [...]."14

According to the Bureau, the fulfillment by a Judge of his or her administrative functions cannot amount to a ground for subsequently disqualifying this Judge with regard to his judicial functions.

The Bureau therefore declared that the appellants had failed to satisfy the requirements set out in Sub-rule 15(A)15 and unanimously decided that Judges Riad, Wang and Netio-Navia were not disqualified from sitting on the appellate proceedings in Celebici.

Declaration of Judge Shahabuddeen

Judge Shahabuddeen agreed with the dispositif of the Decision, but he reserved his position with regard to the Plenary's competence to pass on tenure16.

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1Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, filed on 30 July 1999.
2 The Judges for which disqualification or recusation is demanded are Judge Riad, Judge Wang and Judge Nieto-Navia.
3 Prosecution Response to Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves.
4 Referral of Application to the Bureau under Rule 15(B), 15 September 1999. In memoranda accompanying the Referral, Judge Hunt, as Presiding Judge, considered that there was no necessity for the Judges in question to disqualify themselves or for them to be disqualified from hearing the Celebici appeal.
5 Decision on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 17 September 1999. The Appeals Chamber held that the subject matter of the Motion was not a matter for the consideration of the Appeals Chamber, but that it should instead be regarded as an application to the Presiding Judge pursuant to Sub-rule 15(B).
6 In the Bureau's words (paragraph 6), the first issue is "that of the requirements for a person to serve as a Judge of the ICTY and the connected question of what conduct or situations are incompatible with the discharge of judicial functions".
7 The second issue is that of "the grounds of disqualification of a Judge from sitting in a particular case."
8 Article 13(1) of the Statute : "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."
9 See Article 13(4) of the Statute and Article 16 of the Statute of the International Court of Justice.
10 Rule 15(B) of the Rules on Procedure and Evidence.
11 Paragraph 9.
12 See paragraph 10 of the Decision.
13 Paragraph 13.
14 Paragraph 14.
15 Paragraph 16 : "In particular, they have failed to show that Judges Riad, Wang and Nieto-Navia have a personal interest in the question of whether Judge Odio Benito was entitled to sit in Celebici or have any associations with this question which might affect their impartiality."
16 Judge Shahabuddeen "was not persuaded that it was necessary for the Bureau to pronounce on the question whether the plenary assembly of the Judges of the Tribunal was competent to pass on a question whether a particular judge had ceased to hold judicial office because of loss of independence."