The International Criminal Court (ICC) plenary of judges has declined a defense request to disqualify Judge Cuno Tarfusser from handling the pre-trial phase of the new case against Jean-Pierre Bemba, his two former lawyers, and two aides.
“Distinguishing between allegations relating to the interpretation of the law by the Judge and allegations relating to the conduct of the Judge in the proceedings, the Plenary unanimously dismissed the Applications,” a decision issued on June 23, 2014 reads. The judges found that none of the arguments put forward by the defense teams of four of the accused persons “substantiated any allegations of bias, or the appearance thereof.”
In seeking Judge Tarfusser’s disqualification, defense teams argued that he had issued “unorthodox and legally unsubstantiated judicial mandates” that overwhelmingly favored the prosecution. They also questioned his alleged haste in issuing arrest warrants for the five accused. Furthermore, the defense accused Judge Tarfusser of actions and language “manifestly contravening the presumption of innocence and instead implying guilt.”
The president of the plenary, Judge Sang-Hyun Song, stated in the decision that the defense had not shown that the decisions in question were based on a pre-disposition of Judge Tarfusser in favor of the prosecutor or personal investment in a particular outcome by the judge. Moreover, the plenary decided that even if the judge had rejected the majority of defense applications and granted the majority of prosecution applications, this could not constitute a reasonable basis for disqualification.
Last November, Judge Tarfusser issued arrest warrants against Mr. Bemba, his then lead attorney Aimé Kilolo-Musamba, case manager Jean-Jacques Mangenda Kabongo, Congolese parliamentarian Fidèle Babala Wandu, and defense witness Narcisse Arido. They were accused of bribing witnesses and presenting forged evidence in the ongoing trial of Mr. Bemba over war crimes and crimes against humanity.
Defense lawyers for four of the accused argued that Judge Tarfusser’s monitoring of telephone conversations of Mr. Bemba’s lawyers prior to waiving their immunities violated the principle of privileged communications and established his lack of impartiality. Mr. Bemba did not appeal for the disqualification of the judge.
The defense team also accused the judge of unilaterally and unlawfully appointing an independent counsel to facilitate an internal investigation despite the court’s founding statute not envisaging such a scenario. The defense claimed that Judge Tarfusser instructed the independent counsel to find only incriminatory evidence for purposes of the prosecution’s investigation.
Furthermore, the defense argued that the single judge was wrong to apply to the court’s presidency for the waiver of the immunities of Mr. Kilolo and Mr. Mangenda and that doing so rendered him an “interested and affected party tantamount to a second Prosecutor.”
In particular, Mr. Kilolo’s defense argued that the speed – reportedly “mere hours” – with which Judge Tarfusser decided upon the prosecutor’s application for arrest warrants called into question whether the suspects were accorded proper judicial review and real deliberation before the arrest warrants were issued.
The prosecutor opposed the application to disqualify the judge, terming the defense’s appeal “fanciful” and an attempt to “tie up pre-trial proceedings.”
In a written submission to the plenary, Judge Tarfusser denied any impropriety or bias. He said circumstances dictated urgency in the case, including speedy issuance of arrest warrants given the possibility that court staff might have leaked information on the existence of the investigation.
The plenary constituting fifteen judges determined that the concerns regarding the conduct of the case by the judge in terms of speed and language did not satisfy the high standards required to establish an appearance of bias. They noted that the accused were entitled to be tried without undue delay and that the judge was familiar with the case prior to the prosecution’s application for the warrants of arrest.
The plenary also noted that proceedings in this case are the first before the court under Article 70 of the Rome Statute, related to witness tampering. Due to the lack of precedence, many legal and procedural issues remained open to interpretation and litigation in the course of the proceedings.
“Whereas the Defense, in the Applications, might have put forward plausible arguments on the interpretation of the law, there exist equally plausible interpretations motivating the decisions of the Judge,” said the plenary. “Nonetheless, the issues raised by the Defense in the Applications are precisely the types of issues governed by the Court’s appellate process.”
The plenary considered that the defense allegations amounted to an attempt to convert appellate issues into issues of disqualification. This could not stand, “otherwise all judges would risk being subject to disqualification proceedings when they make adverse rulings against a party.”
Furthermore, after studying transcripts of proceedings and decisions made by Judge Tarfusser, the plenary noted that many of the examples given by the defense to cast doubt on his impartiality due to his choice of language had been taken out of context. They noted that “a judge’s ordinary efforts at courtroom administration – even stern and short-tempered efforts – remain immune from establishing bias or partiality.”