Published online by Cambridge University Press: 01 March 2008
This note evaluates the application of rules on judicial independence and impartiality in two international decisions issued in 2004 – the ICJ Order on Composition in the Wall Advisory Proceedings and the disqualification decision of the Special Court for Sierra Leone in Sesay – and compares them with a code of judicial conduct recently prepared by an ILA study group (the Burgh House Principles on the Independence of the International Judiciary). We assert that the approach taken by the ICJ in Wall is excessively restrictive and is out of step with contemporary tendencies to embrace stricter standards of judicial independence and impartiality.
1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 30 Jan. 2004,  ICJ Rep. 3 (hereinafter ICJ Order).
2. A. Sami, ‘Nabil Elaraby: A Law for All Nations’, Al-Ahram Weekly On-Line, August 2001, available at http://weekly.ahram.org.eg/2001/547/profile.htm.
3. ICJ Order, supra note 1, at para. 5, referring to a claim made by the government of Israel in a confidential Letter from the Government of Israel to the President of the ICJ, dated 15 January 2004.
5. For a comprehensive discussion of the nature of mixed or hybrid international tribunals, see C. P. Romano, A. Nollkaemper, and J. K. Kleffner, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (2004).
6. G. Robertson, Crimes against Humanity: The Struggle for Global Justice (2002).
7. Prosecutor v. Sesay, Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, Case No. SCSL-2004-15-AR15, A.Ch., 13 March 2004.
8. This is because the view that RUF forces engaged in widespread criminal conduct was relevant to the question of individual criminal responsibility to be determined in the RUF case (although the judges still had to examine the links between the accused RUF member and the commission of specific crimes), and because a negative view on the legality of Israeli presence, policies, and conduct in the Occupied Palestinian Territory was relevant to the issue determined in the Wall case, namely the legality and legal consequences of a decision by Israel to construct a wall within that territory (although the judges still had to examine whether the specific action and consequences of constructing the wall breached specific international law provisions).
9. The Burgh House Principles on the Independence of the International Judiciary, 25 November 2004 (hereinafter Burgh House Principles), reprinted in (2005) 4 The Law and Practice of International Courts and Tribunals 247.
10. General Assembly Res. ES-10/14, UN Doc. A/ES-10/L.16 (2003).
11. Letter by the Government of Israel to the Registrar of the ICJ of 31 December 2003. See reference to this letter in ICJ Order, supra note 1, at paras. 2 and 3.
13. Letter written and sent confidentially by the Israeli Foreign Ministry's Legal Advisor, on behalf of the Government of Israel, to the President of the ICJ of 15 January 2004 (hereinafter Follow-Up Letter). See reference to the Follow-Up Letter in the ICJ Order, supra note 1, at paras. 3–5.
14. See reference to these arguments in the ICJ Order, supra note 1, at para. 4. The Follow-Up Letter, supra note 13, also pointed to Elaraby's involvement in a number of initiatives concerning the establishment of autonomy in the West Bank and Gaza Strip, as well as to his previous positions as Legal Advisor to the Egyptian Ministry of Foreign Affairs and as Legal Advisor to the Egyptian Delegation to the Camp David Middle East Peace Conference of 1978. It is, however, unclear whether and how these specific activities could compromise his judicial independence or create an appearance of bias.
16. ICJ Order, supra note 1, at para. 5 (referring to the Letter sent to the President of the Court by the Government of Israel).
18. Statute of the International Court of Justice, 26 June 1945, 59 Stat. 1055.
19. ICJ Order, supra note 1, disposition. Indeed, Israel never alleged that Judge Elaraby had any involvement with the specific dispute over the construction of the Wall in the Occupied Territories.
23. Special Court for Sierra Leone Rules of Procedure and Evidence (hereinafter SCSL Rules), Rule 15(a). On 29 May 2004 (following the Sesay decision), Rule 15(A) of the SCSL Rules was amended and it now stipulates that ‘A Judge may not sit at a trial or appeal in any case in which his impartiality might reasonably be doubted on any substantial ground.’
24. Rule 15(B) of the SCSL Rules, stipulated (at the time) as follows: ‘Any party may apply to the Chamber of which the Judge is a member for his disqualification on the above grounds. If the judge does not withdraw, the issue of disqualification will be determined by the other judges of that Chamber.’ This Rule was also amended on 29 May 2004, and it now stipulates that ‘Any party may apply to the Chamber of which the Judge is a member for the disqualification of the said Judge on the above ground.’
27. Prosecutor v. Sesay, Case no. SCSL-2004-15-PT, Prosecution Response to the Defence ‘Motion Seeking Disqualification of Judge Robertson from the Appeals Chamber’, para. 2.
28. In his statement, Judge Robertson opined that Rules 15(A) and 15(B) of the SCSL Rules do not permit the removal of judges from the Chamber, but rather deal exclusively with the withdrawal of judges from sitting in particular cases.
29. Prosecutor v. Sesay, Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, Case No. SCSL-2004-15-AR15, A.Ch., 13 March 2004.
30. Ibid., at para. 15. Judge Robertson himself did not sit in the Chamber in the disqualification proceedings.
31. One should note that, on 20 April 2004, Sesay's defence counsel filed a motion seeking clarification of the Disqualification Decision, in which it was argued that ‘Justice Robertson must take no part in any decision (including decisions taken in the course of plenary sessions of the judges concerning the rules of the Special Court of Sierra Leone), insofar as any such decision relates to or concerns in any way the trials of defendants formerly members of the RUF.’ The basis for this argument was that the appearance of bias is ‘indivisible as regards the numerous functions and decisions of Justice Robertson both as a judge and member of the Plenary Council of judges, insofar as they relate to and impact upon the cases of the RUF’. Thus the defence essentially requested the disqualification of Judge Robertson from participating in the work of the SCSL. On 25 May 2004 the Appeals Chamber dismissed this defence motion, holding that ‘the Disqualification Decision was clear, explicit and unambiguous’ and reaffirming its decision to preclude Judge Robertson from ‘adjudicating on the following matters: (1) Those Motions involving alleged members of the RUF for which decisions are pending, in this Chamber; and (2) Cases involving the RUF if and when they come before the Appeals Chamber’. On 28 May 2004 Sesay's defence counsel filed another motion, this time requesting that Judge Robertson be barred from ‘all judicial functions involving the RUF (including those exercised pursuant to Rule 24 of the Rules of Procedure and Evidence)’. Rule 24 of the Rules of Procedure and Evidence concerns the roles of the SCSL judges at plenary meetings (which include, inter alia, adopting and amending the Rules of Procedure and Evidence, as well as deciding on matters relating to the internal functioning of the Chambers and the SCSL). On 6 August 2004 the defence counsel, however, asked to withdraw this motion. On 15 October 2004 the Appeals Chamber granted the defence counsel leave to withdraw the motion, emphasizing, nonetheless, that it considered that ‘the merits of the Motion have been fully argued before this Chamber’.
32. See, e.g., T. Meron, ‘Judicial Independence and Impartiality in International Criminal Tribunals’, (2005) 99 AJIL 359, at 359–60. For the importance of legitimacy in international life, see generally T. M. Franck, Fairness in International Law and Institutions (1995).
33. Cf. J. Rutherford, ‘The Myth of Due Process’, (1992) 72 Boston University Law Review 1.
34. On the importance of judicial independence see L. R. Helfer and A. Slaughter, ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’, (2005) 93 California Law Review 899; L. R. Helfer and A. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, (1997) 107 Yale Law Journal 273, at 312–15; R. Keohane et al., ‘Legalized Dispute Resolution: Interstate and Transnational’, (2000) 54 International Organization 457, at 459–62. But see E. Posner and J. Yoo, ‘Judicial Independence in International Tribunals’, (2005) 93 California Law Review 1; E. A. Posner and J. C. Yoo,’Reply to Helfer and Slaughter’, (2005) 93 California Law Review 957.
35. See, e.g., D. Shelton, ‘Legal Norms for Independence and Accountability of International Tribunals’, (2003) 2 Law and Practice of International Courts and Tribunals 27.
36. See, e.g., N. K. Stafford, ‘A Model War Crimes Court: Sierra Leone’, (2003) 10 ILSA Journal of International & Comparative Law 117, 133; D. Cohen, ‘Hybrid Justice in East Timor, Sierra Leone, and Cambodia: Lessons Learned and Prospects for the Future’, (2007) 43 Stanford Journal of International Law 1, at 37.
37. See, e.g., ICJ Statute, supra note 18, Art. 31; European Convention on Human Rights, 4 November 1950, Art. 27(2), ETS 5.
38. But see Prosecutor v. Seselj, Decision on Motion for Disqualification, Case No. IT-03-67-PT, A. Ch., 10 June 2003, at para. 3 (‘The nationalities and religions of Judges of this Tribunal are, and must be, irrelevant to their ability to hear the cases before them impartially’).
39. This is confirmed, inter alia, by Principle of the Burgh House Principles, which covers judicial expressions incompatible with judicial independence and impartiality. Although this last principle covers only expressions issued by sitting judges, the same impartiality rationale would restrict service by judges who have issued compromising statements prior to their appointment to the bench.
40. Another specific application of this general precept is found in restrictions introduced by the Principles on past and future links with the parties and ex parte contacts with them. Burgh House Principles, supra note 9, Principles 10, 12, 13.
41. The reference to objective appearances is grounded on the common law maxim that ‘justice must not only be done, but should manifestly and undoubtedly be seen to be done’. Rex v. Sussex Justices, ex parte McCarthy,  1 KB 256, at 259. It also sits well with the Roman law notions that ‘litigations should proceed without suspicion’. See Code of Justinian, Book III, Title 1, section 3 (‘Although a judge has been appointed by imperial power yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion to recuse him before an issue joined, so that the cause go to another’; translated in H. Putnam, ‘Recusation’, (1923) 9 Cornell Law Quarterly 1, at 3, at n. 10.
42. Rome Statute of the International Criminal Court (ICC), Art. 41(2)(a) (‘A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground’); ICC Rules of Procedure and Evidence, Rule 34(1) (authorizing the Prosecutor to move to disqualify judges if their functions or expressed opinions ‘objectively, could adversely affect the required impartiality of the person concerned’); ICTY Rules of Procedure and Evidence, Rule 15(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’); ICTR Rules of Procedure and Evidence, Rule 15(A) (‘A Judge may not sit on 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’).
44. Prosecutor v. Furundžija, Judgement, Case No. IT-95-17/1-A, A. Ch., 21 July 2000, at para. 189 (emphasis added).
46. See, e.g., Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte,  1 All ER 924 (HL) (per Lord Hope of Craighead) (‘Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial’); Hoekstra v. Her Majesty's Advocate, 2000 SCCR 367, 368 (HCJ); A.S.M. Shipping Ltd. of India v. T.T.M.I. Ltd. of England  EWHC 2238 (Comm),  All ER (D) 271 (Nov); Webb v. The Queen (1994) 181 CLR 41, 30 June 1994 (Australia) (per Mason CJ and McHugh J)(‘Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality’); R.D.S. v. The Queen, 151 DLR (4th) 193, at 229 (1997)(Can. Sup. Ct.)(‘When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias’); President of the Republic of South Africa and Others v. South African Rugby Football Union and Others, Judgment on Recusal Application, 1999 (7) BCLR 725 (CC), at para. 35, 3 June 1999 (‘Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes’); U.S. v. Bremers et al., 195 F 3d 221, 226 (5th Cir. 1999) (‘Since the goal of section 455(a) is to avoid even the appearance of impropriety . . . recusal may well be required even where no actual partiality exists’); Liljeberg v. Health Services Acquisition Corp., 486 US 847, 860 (1988). See also the following provisions in civil law systems: Arts. 22–24 of the German Code of Criminal Procedure (Strafprozeßordnung); Art. 668 of the French Code de Procédure Pénale; Arts. 34–36 of the Italian Codice de Procedura Penale; Arts. 512–519 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering); Sections 13 and 14 of the Swedish Code of Judicial Procedure (1998).
47. See Sramek v. Austria, Judgment of 22 October 1984, Eur. Ct HR, Series A, No. 84, para. 42; Campbell and Fell v. United Kingdom, Judgment of 28 June 1984, Eur. Ct HR, Series A, No. 80, para. 85.
48. Universal Declaration of Human Rights, Art. 10 (‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’); International Covenant on Civil and Political Rights, Art. 14(1) (‘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’); American Convention on Human Rights, Art. 8(1) (‘Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal’); European Convention on Human Rights, Art. 6(1) (‘[E]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’); African Charter on Human and Peoples’ Rights, Art. 7(1)(d) (‘[Every individual shall have the right to] be tried within a reasonable time by an impartial court or tribunal’). Arguably, such standards could also govern the right of individuals to fair trial before independent and impartial international tribunals.
49. See, e.g., Prosecutor v. Bobetko, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, Case Nos. IT-02–62-AR54 bis & IT-02-62-AR108 bis at 29, A. Ch., 29 November 2002, at para. 15; Prosecutor v. Jelisic, Decision on Request to Admit Additional Evidence, Case No. IT-95-10-A, A. Ch., 15 November 2000; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States), Order of 14 April 1992,  ICJ Rep. 3, at 113 (Judge El-Kosheri, Dissenting Opinion) (courts have inherent power to ensure the proper administration of justice).
50. See, e.g., International Centre for Settlement of Investment Disputes, Rules of Procedure for Arbitration Proceedings (as amended on 29 September 2002), Art. 19, available at http://www.worldbank.org/icsid/basicdoc/partF.htm; United Nations Convention on the Law of the Sea, 10 December 1982, Annex VII, Art. 5 (Arbitration Rules), (1982) 21 ILM 1261; Understanding on the Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the Agreement Establishing the World Trade Organization), 15 April 1994, Art. 12.1, (1994) 33 ILM 1226.
51. This is because Article 17(2) is the only legal source identified by the Court in the substantive part of the decision.
54. ICJ Practice Directions, Directions VII–VIII (VII: ‘The Court considers that it is not in the interest of the sound administration of justice that a person sit as judge ad hoc in one case who is also acting or has recently acted as agent, counsel or advocate in another case before the Court. Accordingly, parties, when choosing a judge ad hoc pursuant to Article 31 of the Statute and Article 35 of the Rules of Court, should refrain from nominating persons who are acting as agent, counsel or advocate in another case before the Court or have acted in that capacity in the three years preceding the date of the nomination. Furthermore, parties should likewise refrain from designating as agent, counsel or advocate in a case before the Court a person who sits as judge ad hoc in another case before the Court’; VIII: ‘The Court considers that it is not in the interest of the sound administration of justice that a person who until recently was a Member of the Court, judge ad hoc, Registrar, Deputy-Registrar or higher official of the Court (principal legal secretary, first secretary or secretary), appear as agent, counsel or advocate in a case before the Court. Accordingly, parties should refrain from designating as agent, counsel or advocate in a case before the Court a person who in the three years preceding the date of the designation was a Member of the Court, judge ad hoc, Registrar, Deputy-Registrar or higher official of the Court’).
55. For a discussion of the origins of the relevant 1929 amendments of Article 17 of the (then PCIJ) Statute, see S. Rosenne, The Law and Practice of the International Court of Justice, 1920–2005 (2006), Vol. I, at 400–2.
61. Interestingly, it was alleged that in another interview given by Judge Elaraby to an Egyptian newspaper after the advisory proceedings were brought before the Court, he commented that ‘There is historical and international evidence that demonstrates that this action of Israel is illegitimate, I believe that Israel's arguments in this suit will be groundless, and that Israel will be in a position where it will be possible to impose sanctions upon it for the first time, if the International Court of Justice decides to convict it.’ ‘ICJ Denies Judge Criticized Fence’, Jerusalem Post, 8 February 2004. Judge Elaraby denied ever giving that interview, however, and the matter was not pursued any further by the Court.
62. Obviously, there may be circumstances in which barring judges from serving on cases because they involve general legal issues on which these judges previously expressed their opinions may be excessive. We do not, however, believe that Sesay represented such a case, given the unequivocal and elaborate views of President Robertson on the factual events in Sierra Leone and their legal implications.
64. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971,  ICJ Rep. 18, at para. 9; South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Order of 18 March 1965,  ICJ Rep. 3.
65. Furundžija, supra note 44, at para. 199.
67. Ibid. For an analogous decision, see Prosecutor v. Delalić, Decision of 25 September 1999, Case. No. IT-96-21-A, A. Ch., 25 September 1999, at para. 10 (ICTY AC) (the fact that a judge engages in political, administrative, or professional activities may in certain cases also imply that he or she lacks impartiality by virtue of personal interest or association with the case).
68. Cf. ICJ Order, supra note 1, at para. 6 (Judge Buergenthal, Dissenting Opinion) (‘I share the Court's opinion that Judge Elaraby's prior activities, performed in the discharge of his diplomatic and governmental functions, do not fall within the scope of Article 17, paragraph 2 . . . This conclusion can be justified on the ground that these views were not Judge Elaraby's personal views, but those of his Government whose instructions he was executing . . . Although I can imagine circumstances where this general rule will not withstand closer scrutiny, I agree with the Court in applying it to the instant case’).
69. ICJ Statute, supra note 18, Art. 2 (‘The Court shall be composed of a body of independent judges’).
70. See, e.g., I. Brownlie, Principles of Public International Law (2003), 677.
72. For the argument that arbitration bodies are less independent than most permanent courts, see Posner and Yoo, ‘Judicial Independence in International Tribunals’, supra note 34.