Before:
Judge Theodor Meron, President
Judge Fausto Pocar, Vice-President
Judge Richard May
Judge Daqun Liu
Judge Claude Jorda

Registrar:
Mr Hans Holthuis

Decision of:
10 June 2003

The Applicant:

Vojislav Seselj

Counsel for the Prosecution:

Hildegard Uertz-Retzlaff
Daniel Saxon

1. On 21 May 2003, Vojislav Seselj (“Applicant”) applied pursuant to Rule 15( B) of the Rules of Procedure and Evidence (“Rules”) to have Judges Schomburg, Mumba, and Agius of Trial Chamber II disqualified from hearing his case because of actual bias.¹ Because one of the Judges Seselj seeks to have disqualified, Judge Schomburg, is the Presiding Judge of the Chamber , the matter has been referred to the Bureau.² For the reasons given below, the Bureau denies the application.

2. The only bases for the Applicant’s claim are Judge Schomburg’s nationality and Judge Mumba’s and Judge Agius’s religion. The Applicant is a Serb and an Orthodox Christian. He claims that, because of a long history of conflict between Germans and Serbs, Judge Schomburg’s German nationality prevents him from being impartial . He also asserts Judge Schomburg’s nationality undermines his impartiality because Germany is a member of the North Atlantic Treaty Alliance (“NATO”). Finally, he contends that Judge Agius and Judge Mumba are Catholic and that, because of a long history of conflict between the Serbian Orthodox Church and the Catholic Church, those Judges could not hear his case impartially.

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. The Statute of the Tribunal requires Judges to be “persons of high moral character, impartiality and integrity.” Before taking up their duties, each Judge must make a solemn declaration committing himself or herself to performing those duties “honourably, faithfully, impartially and conscientiously.” Judges in every domestic system of justice need to put aside any identification with a particular group based on religion, ethnicity, gender or other traits, characteristics, or grounds. Similarly, they must put aside any of these bases of identification in relation to any accused who appear before them. Their ability to do so, and to consider nothing but the evidence presented to them in deciding on an individual’s guilt, constitute a touchstone of their role as judges. So it is at this International Tribunal.

4. Similar considerations demonstrate the groundlessness of the Applicant’s assertion that a citizen of a NATO country cannot judge him impartially. The policies of the governments of the countries from which Judges of this International Tribunal come are, and must be, irrelevant to the carrying out of their judicial responsibilities . Judges of this International Tribunal serve only the international community. In taking their solemn declaration to perform their duties “honourably, faithfully , impartially and conscientiously,” they necessarily disavow any influence by the policies of any government, including the government of their home country.

5. This Application calls for one further comment from the Bureau. The Application contains several phrases or statements that are abusive and insulting. Parties appearing before the Tribunal have great latitude in phrasing their pleadings. But that latitude is not boundless. Insults are not arguments, and insults based on group identities, such as nationality, religion, and ethnicity, are particularly offensive. The Bureau has previously held that Rule 46(C) of the Rules applies in proceedings before the Bureau.³ That Rule authorizes the imposition of sanctions on a counsel who brings a motion that is “frivolous or an abuse of process.” When, as in this case, a defendant chooses to represent himself, the power given in the Rule may be exercised against the defendant himself. Motions containing abusive and insulting language of the sort included in the present Application are indeed “frivolous or an abuse of process,” and the Bureau wishes to underline that the present Application is manifestly frivolous and an abuse of process. In this case, the particular sanction mentioned in Rule 46(C) cannot be applied because the Applicant is not represented by counsel . It should be noted, however, that one sanction the Bureau may apply to such filings is to direct the Registrar to deny filing. The applicant would then be required to file a new application without the offensive language. If the applicant were to persist, the Bureau might bar the filing of the application altogether. The Trial Chambers may well apply similar principles, and the Applicant should be aware of these principles in drafting pleadings in the future.

6. The Application is denied as frivolous and an abuse of process.

Done in English and French, the English text being authoritative.

___________________________
Theodor Meron
President

Dated this 10th day of June,
At the Hague,
The Netherlands.

[Seal of the Tribunal]

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