Furundzija Case: The 'Pinochet precedent' in the ICTY

Last summer, while defending Anto Furundzija, accused as a co-perpetrator of torture and of aiding and abetting in outrages upon personal dignity, including rape - he asserted that the court could not accept the testimony of the victim - since the victim on that occasion, i.e. while being tortured and raped - suffered shock and stress and incurred heavy physical and psychological traumas, which made her an "unreliable witness" (See Update 101).

Under Misetic's logic, this would imply that only those victims of rape and other crimes who endured such treatment calmly and coolly, without suffering shock and trauma, could testify before the court. The court, nevertheless, decided that the victim/witness could indeed be trusted. It found Furundzija guilty and sentenced him to 10 years' imprisonment. [See TU 105].

Misetic last week invoked a new principle; the "Pinochet precedent" and filed a "Post-Trial Application for the Disqualification of Presiding Judge Mumba" to the Tribunal Bureau. Misetic argues that Presiding Judge Florence Mumba "should be disqualified for sitting as a judge on a case that promoted a legal and political agenda which she helped to create while a member of the United Nations Commission on the Status of Women."

In developing his argument, Misetic pointed to Rule 15(A) of the Rules of Procedure and Evidence, according to which "(a) Judge may not sit on a trial . . 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."

Having thus specified the legal basis for the application, Misetic asserted that only "after judgement was rendered in this [Furundzija] case . .counsel for the Defendant learned for the first time that Presiding Judge Mumba had a personal interest in this case, as defined Re: Pinochet Ugarte, House of Lords, 15 January 1999, and has had a number of associations concerning the case that might affect her impartiality.

Thus, because both of the situations requiring disqualification under Rule15(A) are present, Judge Mumba can be disqualified for either reason." The Pinochet decision Misetic deems, "establishes an important precedent that has direct bearing upon this case."

The House of Lords, he reminds us, "determined that one member of the panel, Lord Hoffman, had a "disqualifying" interest in the Pinochet case by virtue of his involvement with a fund-raising arm of Amnesty International, an organisation that had participated in the case and that had an interest in achieving certain goals relating to human rights under international law which would be advanced by Senator Pinochet's extradition."

The fundamental principle of law on which the House of Lords based its opinion, Misetic pointed out, was that "a man may not be the judge in his own cause." Once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, "he is disqualified without any investigation into whether there was a likelihood of suspicion of bias." Applying the Pinochet decision to the "Judge Mumba Case", Misetic claims that she had "a relevant interest in [the] subject matter of the [Furundzija] case."

Judge Mumba's "personal interest" need not relate to money or economic advantage, but may be "concerned with the promotion of a cause" in which she has been involved. Judge Mumba, Misetic argued, "previously advocated the position that rape was a war crime and encouraged the vigorous prosecution of persons charged with rape as a war crime in her role on the United Nations Commission on the Status of Women."

He argues that during Judge Mumba's term, the Commission issued a resolution that "strongly condemned the abhorrent practice of rape and abuse of women and children in the areas of armed conflict in the former Yugoslavia," declaring that "rape is a heinous crime", and "encouraging the International Tribunal to give due priority to the cases of victims of rape .. . . particularly in Bosnia-Herzegovina."

Moreover, according to Misetic, the general goals of the Commission are also grounds for disqualifying Judge Mumba. These goals include, he argues, "ensuring equal rights for women, eliminating discrimination against women, protecting victims of sexual violence in the legislature and courts, vigorously prosecuting persons accused of sexual violence, and imposing severe sentences on persons convicted of sexual violence." The Commission, he said, also sought to reaffirm the fact that "rape is a war crime and [sought to] expand... the definition of rape."

Therefore, Misetic concluded, by reaffirming rape as a war crime, expanding the definition of the rape and imposing a severe sentence on the defendant, Judge Mumba's judgement in Trial Chamber II "in fact promoted specific interests and goals of the Commission."

Misetic also argued for Judge Mumba's disqualification of account of her "associations with persons and entities involved in this case that might affect her impartiality." He went on to explain that the Judge sat on the Commission with representatives of three organisations that were granted leave to file an amicus curiae brief in the proceedings before the Trial Chamber: The Women's International League for Peace and Freedom; the International Federation of Women Lawyers, and the Centre for Constitutional Rights.

Two additional organisations that were granted leave to file the same amicus curiae brief - the International Women's Human Rights Law Clinic and the International Centre for Human Rights and Democratic Development - were participants in the Beijing World Conference on Women (September 1995) that ratified the Commission's platform for Action. As colleagues on the commission and/or proponents of the Platform for Action, Judge Mumba and these five organisations shared - or appear to have shared - the interest and goals of the Commission that were implicated in the present case.

Moreover, a number of the statements made in the amicus curiae brief reflect or advocate positions taken in the "Platform for Action." This platform was adopted at the Beijing Women's Conference and represents a five-year plant to achieve gender equality by the year 2000. It identified 12 "critical areas" of concern, including violence against women, women and armed conflict and lack of respect for the human rights of women.

To complete this international women's conspiracy against the accused, Misetic included within it one of the Prosecutors in the Furundzija case: Patricia Viseur-Sellers. She, he said, "worked with a sub-organ of the Commission in order to assist in the implementation of the Platform of Action."

Consequently, Misetic concluded, "Judge Mumba and Ms. Viseur-Sellers either shared or appear to have shared, an interest in the policies and goals of the Commission that were implicated in the case. Moreover, when this Tribunal followed the recommendation made by members of the Commission during Judge Mumba's term to establish a special unit in the office of the Prosecutor which would deal mainly with war-related violence against women, including rape and sexual assault, the person hired to head that unit was Ms.Viseur-Sellers."

All in all, Misetic concluded, "these associations demonstrate a shared interest among Judge Mumba, Ms. Viseur-Sellers and the amici curiae in the policies and goals of the Commission." These associations and the shared interests "might affect- or might be seen to affect - Judge Mumba's impartiality in a case where these issues are presented . . . and where her decision could lead to the promotion of causes in which she has been involved, through the Commission, with Ms. Viseur-Sellers and the amici curiae."

Concluding his extensive application to the Bureau of the Tribunal (which is composed of the President, the Vice-President and the presiding Judges of the Trial Chambers), Misetic "respectfully request[ed] that this Honorable Tribunal: (1) Disqualify Judge Florence Ndepele Mwachande Mumba from these proceedings; (2) Vacate the Judgement and Sentence entered on 10 December 1998; (3) Order that this matter be retried in front of a differently constituted Chamber; (4) Grant such other relief as this Tribunal deems appropriate."

According to the criteria set by Misetic and his interpretation of the Pinochet decision, it is questionable whether the Bureau of the Tribunal can be "the judge in its own cause". The President of the Tribunal, Judge Gabrielle Kirk McDonald, is known for her personal interest in, and vigorous defence of, minority and human rights in the United States. Other judges on the Bureau have also demonstrated their "personal interest" in the "promotion of the cause" of international humanitarian law.

Under Misetic's logic then, all of them would have to be disqualified "without any investigation into whether there was likelihood of suspicion of bias."