BLOG: Judicial Impartiality at the United Nations International Residual Mechanism for Criminal Tribunals

With the issue of procedural fairness brought into sharp focus in the international court, Peta-Louise Bagott looks at judicial impartiality.

The disqualification of three judges from Ratko Mladić’s appeal

On 22 November 2017, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) found General Ratko Mladić guilty of genocide, persecution, extermination, murder, expulsion and other inhumane acts (through forcible transfer) constituting crimes against humanity, as well as murder, terror, unlawful attacks against civilians and the taking of hostages, constituting violations of the laws or customs of war, for having participated, as the Chief of Staff of the Army of the Serbian Republic of Bosnia (VRS), in four joint criminal enterprises in Bosnia and Herzegovina between May 1992 and November 1995. He was sentenced to life imprisonment.

On 3 September 2018, Judge Antonetti (acting as the senior Judge, in place of the President,  at the International Residual Mechanism for Criminal Tribunals (‘IRMCT’)) issued a decision granting the Mladić defence’s request to disqualify Judges Meron, Liu and Agius from the Mladić Appeals Chamber. Judge Antonetti concluded that their findings on his criminal responsibility in other cases at the ICTY would cause a reasonable observer properly informed to reasonably apprehend bias. This article considers the significance of Judge Antonetti’s landmark decision.

Judicial impartiality at the ICTY/IRMCT

The Statute and the Code of Professional Conduct of the Mechanism reinforce the right of an accused to receive a fair trial. This principle is enshrined in Rule 18 (A) of the Rules of Procedure and Evidence, which read as follows:

A judge may not sit 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 impartiality. The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case.

Numerous ICTY Appeals Chambers have established that a judge is entitled to a presumption of impartiality. The burden is on the applicant seeking the withdrawal/disqualification to adduce sufficient evidence to demonstrate that a judge is not impartial.

Unlike domestic courts, it is common place for judges at the ICTY/IRMCT to hear separate trials, or sit on separate appeals, arising from the same series of facts and where the cases involve overlapping questions of fact or law. Judge Antonetti’s decision is the first time an international court or tribunal has acceded to disqualification motions alleging bias on the basis a judges adverse findings against an accused in previous judgements.

Judge Antonetti’s decision

The Defence requested that Judges Meron (the IRMCT President and Presiding judge of the Appeal), Agius and Liu withdraw or be disqualified on the basis that certain circumstances could cause a reasonable observer properly informed to reasonably apprehend bias.

The Defence argued that individual findings or the cumulative effect of various findings made by Judges Meron, Aguis and Liu in previous judgements gave rise to an unacceptable appearance of bias. The Defence asserted that there was is a link between the findings made in the Krstić, Tolimir, Popović et al and Blagojević & Jokić judgements and the legal and factual grounds of appeal that they would have to adjudicate on in Mladić. Given that the judgements affirmed that Mladić participated in joint criminal enterprises, contributed to them significantly, and had knowledge of the crimes committed, the Defence argued that the presumption of impartiality has been rebutted.

It is interesting to note that Judge Antonetti asked all three judges to provide written responses to the Defence Motions. These were annexed to the Decision. All vehemently denied that specific findings on Mladić’s criminal responsibility were enough to rebut the presumption of impartiality that they enjoyed or that a perception of bias had been created. Notably, the judges suggested that the disqualification motions were frivolous, and a tactic employed by the Defence to delay the proceedings. A sample of the findings that they defended are set out below.

The Appeals Chamber in Krstić, which Judge Meron presided over, made explicit reference to Mladić being one of the people who “ordered the executions and were active participants in [the joint enterprises]”. This fell outside the analysis of the Trial Chamber’s assessment of the evidence, and was unnecessary to evaluate the criminal responsibility of Krstić. Further in the Tolimir Appeal Judgement, which Judge Meron presided over, the Appeals Chamber held that the Trial Chamber had not erred by inferring Tolimir’s genocidal intent from his close relationship with Mladić. To reach this conclusion, it had to conclude that Mladić possessed genocidal intent and, flowing from this, was guilty of genocide.

In the Popović et al Judgement, the Trial Chamber, presided over by Judge Agius, made a number of findings relating to the basis of the individual criminal responsibility of the Mladić and his criminal responsibility as the superior. One of the most striking examples of this is contained in the following passage:

“[w]hat is clear from the evidence before the Trial Chamber is that such an operation the execution of able-bodied Muslim men from Srebrenica in July 1995, on a massive scale, involving the participation of a multitude of VRS members from the Main Staff down, could not have been undertaken absent the authorisation and order of VRS Commander Mladić. Given his role in the military structure and his acts and words at the time, including his direct involvement in critical components of the operation, any alternative conclusion is inconceivable. His imprint—through rhetoric, threats, speeches, orders and physical presence—appears on an ongoing basis at critical junctures of this murder enterprise. The Trial Chamber is satisfied that Mladić was a central, driving force behind the plan to murder and its implementation.”

Judge Agius asserted that this paragraph did not give rise to an unacceptable appearance of bias and maintained that he could fairly adjudicate the issues in Mladić’s appeal. This is an interesting stance in light of the language used. Given the clear and unambiguous statements on Mladić’s guilt, Judge Antonetti was not persuaded by this.

In the Blagojević and Jokić Judgement, the Trial Chamber, presided over by Judge Liu, made explicit findings regarding Mladić’s role in the crimes, his contribution to them and the knowledge he had of them. The Trial Chamber reached the conclusion that “the widespread and systematic attack against the Bosnian Muslim population in Srebrenica was carried out on the basis of the ethnic, national and religious affiliation of the population” and relied on the words of Mladić’s announcement that “the time has come for us to take revenge upon the Turks in this region” to reach this finding. It then found again that Mladić was one of “the very people who ordered the executions and were active participants in them”. Such references went beyond general facts and contextual references necessary to establish the guilt of Blagojević and Jokić.

Judge Antonetti drew a clear distinction between passages of the judgements that referred only to, and provide an assessment of, the evidence relating to the conduct of an accused or an the reasonableness of the conclusions of the Trial Chamber. On the basis that findings in the Krstić, Tolimir, Popović et al and Blagojević & Jokić judgements ventured into the Chamber’s opinion on Mladić’s involvement in the crimes and his criminal responsibility, Judge Antonetti found that there were sufficient grounds for a reasonable observer duly informed to reasonably apprehend bias. Judges Meron, Agius and Liu were all immediately disqualified from sitting on the Mladić appeal and replaced by three judges that had no previous dealings with the ICTY cases.

This decision marked a dramatic shift away from the ICTY/IRMCT jurisprudence. While the ICTY/IRMCT has repeatedly held that it is not bound by ECtHR cases or ECHR standards, Judge Antonetti paid close attention to this. In his view, the ICTY/IRMCT test could not, and should not, apply a heightened standard to those being tried for international crimes.

The Aftermath of Judge Antonetti’s decision

While Judge Antonetti’s decision has no binding authority on the interpretation of Rule 18 of the Rules in relation to future disqualification applications, the Prosecution sought to appeal this decision. It alleged that the disqualification of the Judges Meron, Agius and Liu had rendered the appeal proceedings unfair and that Judge Antonetti had erred in law by departing from the established practices of the tribunal. The Defence responded that they had failed to establish what unfairness had arisen from the appointment of three new judges, and that there was no legal basis for the Prosecution to appeal the decision. Neither the Statute or the Rules provide for appellate review of a decision taken by the President (or acting President, as Judge Antonetti was for the purposes of the disqualification Motions), pursuant to Rule 18 of the Rules. The Appeals Bench, presided over by Ben Emmerson QC, adopted the Defence submissions and dismissed the Prosecution’s appeal.

The Mladić decision sent waves through the Karadžić appeal. On the basis of the standard applied by Judge Antonetti, Karadžić applied to disqualify Judge Meron from presiding over his appeal. This resulted in Judge Meron withdrawing and the Karadžić Appeal Judgement being delayed while the replacement judge got on top of the appeal judgement. What stands out however, is Judge Meron’s decision to use his withdrawal statement as a means to criticise Judge Antonetti’s decision. He said that “the Mladic Disqualification Decision clearly contradicts established jurisprudence and, in my view, harms the interests of the Mechanism”. It may seem surprising that the President of the Mechanism would find that a decision that applied a standard consistent with ECtHR jurisprudence, and sought to ensure Mladić’s right to have his appeal heard by impartial judges, could in some way harm the interests of the IRMCT.

The saga raises more fundamental questions about the fairness of proceedings and the capacity of international criminal tribunals to deal with criminality of this level. In particular, the question of whether the fate of high-ranking members of the alleged joint criminal enterprise are sealed on an institutional level before their trials had even started as a result of the detailed discussions about their role in other judgments and their trials being conducted by these same judges.

While international courts and tribunals will be keen to regard the Mladić Disqualification Decision as a non-binding anomaly, Judge Antonetti’s reasoning represents an important step towards recognising that even those accused of the most heinous crimes deserve to have their fundamental fair trial rights protected.