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Application For The Disqualification Of Judge Mumba Dismissed

By Mirko Klarin

On Thursday 11 March, the Bureau of the Tribunal issued its Decision on the post-trial application by defendant Anto Furundzija for the disqualification of the presiding Judge Florence Mumba and the motions to vacate conviction and sentence, and for a new trial.

The Bureau, consisting of the Tribunal's President Gabrielle Kirk McDonald, and judges Claude Jorda, Almiro Rodrigues, David Hunt and Mohamed Bennouna - dismissed all those requests "without considering the merits of the Application or of the Motions (...) upon the basis that they do not fall within the competence of the Bureau."

Anto Furundzija, former commander of the "Jokers" - special unit of HVO that operated during the war in Central Bosnia - was sentenced to ten years' imprisonment as co-perpetrator of torture, and for aiding and abetting in rape. His Defence Counsel, young Chicago attorney Luka Misetich, at first lodged an appeal against the judgment, and then last month, submitted an Application for disqualification of Judge Florence Mumba, from Zambia, who Presided over Trial Chamber II (see Tribunal Update No. 111)

Misetich claimed that Judge Mumba had "personal interest" in the case that was examined by the Trial Chamber she presided. Misetich further claimed she was "in contact with persons and entities" that could interfere with her impartiality. Misetich had found out that Mumba had taken part in the work of the United Nations Commission for the Advancement of Women, and that the Commission had harshly condemned war-time rape in the former Yugoslavia and demanded its perpetrators be tried as war criminals.

Misetich's second discovery was that during her membership of the commission, Judge Mumba had been in touch with representatives of other international women's organisations, which had also been lobbying for the classification of rape as a war crime. Some of those organisations were invited to submit written briefs in the case of Furundzija as "amicus curiae", friends of the court. Those links, Misetich argues, could have had presented an interference on Judge Mumba's impartiality.

The Bureau of the Tribunal took note of all requests and arguments presented by Misetich, but rejected the Application on grounds of the Rule 15(B) of the Tribunal's Rules of Procedure and Evidence. According to the said rule, an application for disqualification of a judge can be made during the course of the trial and up to the time when the Judgment is given, but not after it. Since Misetich had also lodged an appeal against the judgment, it is up to the Appeals Chamber, not the Bureau of the Tribunal, to examine and decide whether Furundzija was accorded a fair trial.

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