03 November 2008
The International Bar Association´s Human Rights Institute (IBAHRI) is concerned at the appointment of Zimbabwean Judge Elizabeth Gwaunza as an ad litem judge sitting in the trial of General Gotovina.
The IBAHRI raised these concerns with the President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Judge Fausto Pocar, in letters dated 4 August and 19 September 2008. The IBAHRI referred President Pocar to media and other reports to the effect that Judge Gwaunza had received a farm as a gift from the government of Robert Mugabe, as had many other judges appointed by him in recent years. An aggravating element is that a condition of the gift, in terms of the relevant legislation, is that the farm may be taken away from the judge by the government without reason or compensation. This creates a clear dependency of the judge on the government for the right to retain the gift.
Justice Goldstone, HRI Co-Chair, states that “The IBAHRI considers that the acceptance of a farm in these circumstances constitutes grossly improper conduct by the judges and strikes at the heart of judicial independence. It makes the appointment of Judge Gwaunza to an international criminal court highly inappropriate and be calculated to prejudice the standing of such Court in the opinion of the international community”.
President Pocar informed the IBAHRI that its request that he investigates this allegation was inappropriate in that it relied on unsubstantiated media reports. He also stated that the fact that the General Assembly of the United Nations had included Judge Gwaunza´s name in this list of approved ad litem judges meant that she was a fit and proper person for appointment. The IBAHRI regrets that President Pocar has adopted what it can only describe as an unfortunate failure to protect the reputation and standing of his Court.
Judge Gwaunza´s ownership of the farm is widely known in Zimbabwe and the region. The Judge herself acknowledged receiving the farm at a public meeting of the Law Society of Zimbabwe in 2003. She has also admitted this fact to Judge Unity Dow of the Botswana High Court.
Concerns about the appointment were raised by the Executive Director of the East Africa Law Society, Donald Deya, at the IBA’s Conference in Buenos Aires, Argentina, held recently.
The IBAHRI Council meeting in Buenos Aires on 15 October 2008 again considered the appointment of Judge Gwaunza as an ad litem judge of the ICTY. The Council of the IBAHRI took into account that its Co-Chairs, in the two letters, had requested President Pocar to investigate this matter and had received highly unsatisfactory responses. The IBAHRI resolved to take this matter further, by publicly requesting the ICTY President to investigate fully the allegations concerning Judge Gwaunza and, depending on the outcome of that investigation, to take appropriate action. Ambassador Cardenas, HRI Co-Chair, notes that the IBAHRI “ is convinced that, had the General Assembly been aware of the allegations now made, the General Assembly would not have approved her appointment”. In the view of the IBAHRI, it behoved the President to launch an inquiry before selecting a judge nominated by the government of Robert Mugabe and especially so in the light of his notorious relationship with the Zimbabwean bench. President Pocar failed to do so. The IBAHRI reiterates that its sole concern for raising this matter is the reputation and integrity of the ICTY and international criminal justice.
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