24 Mar ICC Shuffles the Deck — With Interesting Implications for Bashir (UPDATED)
At their most recent meeting, the judges of the ICC rearranged the composition of the Court’s three Divisions. The new composition is as follows:
The judges assigned to the Pre-Trial Division are: Judge Hans-Peter Kaul (Germany), Second Vice-President of the Court; Judge Sylvia Steiner (Brazil); Judge Ekaterina Trendafilova (Bulgaria); Judge Fumiko Saiga (Japan); Judge Sanji Mmasenono Monageng (Botswana); and Judge Cuno Tarfusser (Italy).
The judges assigned to the Trial Division are: Judge Fatoumata Dembele Diarra (Mali), First Vice-President of the Court; Judge Elizabeth Odio Benito (Costa Rica); Judge René Blattmann (Bolivia); Judge Sir Adrian Fulford (United Kingdom); Judge Bruno Cotte (France); Judge Joyce Aluoch (Kenya); and Judge Christine Van den Wyngaert (Belgium).
The judges assigned to the Appeals Division are: Judge Sang-Hyun Song (Republic of Korea), President of the Court; Judge Akua Kuenyehia (Ghana); Judge Erkki Kourula (Finland); Judge Anita Ušacka (Latvia); and Judge Daniel David Ntanda Nsereko (Uganda).
What is particularly interesting about the new composition is that two of the judges that ruled on Bashir’s arrest warrant — Judge Kuenyehia and Judge Usacka — are now in the Appeals Division. They will obviously have to recuse themselves from the Prosecution’s appeal, which means that the genocide issue will be decided by a bare majority of the Division. That is unfortunate, because a decision by the full five-judge Appeals Chamber, whether yea or nea on genocide, would likely be seen as more fair than a three-judge decision, especially if the three judges don’t reach a unanimous conclusion. I’m just glad that Judge Ntanda Nsereko has been assigned to the Appeals Division and will hear the appeal — he is an exceptional international criminal law scholar and will no doubt be an equally exceptional appellate judge.
UPDATE: My friend Don Taylor, a legal officer at the ICTY, points out in the comments that Regulation 12 of the ICC’s Regulations of Court would require the appointment of two additional judges from the other Divisions to replace Judge Kuenyehia and Judge Usacka on the arrest-warrant appeal, which would eliminate my “bare majority” concern. As Don also points out, though, new appointments would not completely eliminate my concern about perceived fairness. I cannot find anything in the Statute or Rules or Regulations that explains how the Presidency chooses the replacement of a disqualified judge. In a situation like this, random selection (even if limited to judges with the appropriate expertise) would obviously be desirable, to avoid charges that the Presidency “stacked the deck” to ensure a particular outcome on the arrest-warrant appeal (whether for or against the appeal).
Readers? Don? Anyone know how replacements are chosen by the Presidency?
Presumably, however, the Prosecution’s appeal will be decided by a full panel of five judges; the three remaining judges of the Appeals Chamber and two other of the Court’s judges temporarily assigned to the Appeals Chamber by the Presidency pursuant to Regulation 12.
That still raises interesting questions regarding the choice of the two additional judges, and leaves the possibility that the final decision – if a split one – might have one or more of the remaining “permanent” Appeals Chamber judges in the minority.
By the way Kevin, I also should have included above that I fully agree with you regarding Judge Nsereko.
Unfortunately, because of the peculiar nature of term limits at the ICC, Kirsch and Pikis will not be around to rule on the Prosecution’s appeal. Their opinions, particularly with regards the issue of victim participation, were particularly well-reasoned (although ultimately unavailing).
As far as I am aware, there are no official rules for choosing replacements right now, but the Presidency seems to be working on it. Factors to be taken into acccount when choosing the replacement include workload of an individual judge, back-and-forth contamination issues, etc. With 17 judges on the Court, Shahabudden missing, the Presidency will have some really tough calculations to make.
With Judge Blattmann retained on the Lubanga trial despite the expiry of his term and Judge Saiga apparently continuing to sit on the Katanga/Lubanga trial (despite having also been assigned to the Pre-Trial Division), two newly elected Trial Division judges remain unassigned to any Chamber: Judge Van den Wyngaert and Judge Aluoch. As such I suspect that these two judges are the ones likely to be assigned to the Appeals Chamber in this instance.
A quick glance at a previous temporary replacement decision (Judge Nsereko in for Judge Pillay towards the end of last year) shows that there is no transparency in the Presidency’s decision. Regulation 15 requires gender and geographical considerations to be taken in to account, whilst suitability will of course also be a factor (Article 39(1)); this in addition to the light shed on the matter by passer by, above.
This is all assuming, of course, that the Prosecution is granted leave to appeal. Interestingly the request will be considered by a newly convened pre-trial chamber, in contrast to all previous such decisions which have been taken by the same panel of judges that rendered the initial decision.