Further Thoughts on Judge van den Wyngaert’s Withdrawal from the Kenyatta Case

I have now had the opportunity to read both Judge van den Wyngaert’s request to be excused from the Kenyatta case and the Presidency’s decision to grant that request. There is no question that workload did indeed play a role in the Judge’s decision to withdraw. But it also seems clear that there was at least one other reason, as I will explain below.

To begin with, though, I want to apologize to anyone — especially the Judge! — who saw my post as an attack on Judge van den Wyngaert’s integrity. That was certainly not its intent; I have nothing but respect for the Judge. Indeed, I intended the post to praise the Judge for her willingness to challenge the prosecution’s conduct openly and in writing, while still questioning whether withdrawing from the case was a good idea or consistent with the ICC’s rules. Unfortunately, having re-read the post a few times, I can see that I was nowhere near clear enough in expressing my intent. I should have avoided talking about “convenient excuses” and the like. My apologies again to anyone who thought I was attacking the Judge.

Now, my thoughts in light of the newly-released documents. First, my (at least partial) misinterpretation of the Judge’s actions reflects an ongoing problem with the Court’s release of information to the public. Had the Court made the relevant documents available in a timely fashion, I would have written the post differently — and more importantly, the Kenyan press would have found it more difficult to further discredit the case against Kenyatta by drawing a connection that may not actually exist. All too often, though, critical documents are either never put on the ICC website or are uploaded days after decisions themselves attract attention. I can usually hunt down documents I need, whether through personal connections or by asking for them here on the blog. But too many others depend solely on the website. Something needs to be done.

Second, to echo David Koller’s comment to my previous post, I am a bit baffled by the idea that Judge van den Wyngaert was only temporarily assigned to the Trial Chamber in the Kenyatta case. Here is paragraph 2 of her request to be excused:

On 30 March 2012, I was requested to accept temporary assignment to Trial Chamber V, in view of the limited capacity of judges in the Trial Division, as the newly elected judges assigned to that Division had not yet been called to The Hague. I accepted this assignment on the clear understanding that it would be limited in time and only for the purposes of the preparation of the two Kenya trials.

I am not completely convinced that the Rome Statute and Rules of Procedure and Evidence allow such a temporary assignment. Art. 39(4) of the Rome Statute does provide that “[n]othing in this article shall… preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court’s workload so requires.” My guess, though, is that the drafters of Art. 39(4) assumed that PTC judges would be temporarily assigned to the TC for the duration of a particular case, not simply for part of it. I could be wrong about that and invite readers to weigh in. Regardless, such temporary assignments are a terrible idea — not only because the departure of a judge just before trial can prejudice one of the parties (as I still believe is the case regarding the defence in the Kenyatta case), but also because they actually waste judicial resources by requiring two different judges to familiarize themselves with the case.

Third, and most importantly, I still have to disagree with those who insist — in the comments to my previous post or via email — that Judge van den Wyngaert withdrew solely because of her workload. Two very cryptic statements in the Presidency’s decisions contradict that idea (emphasis added):

The Judge submits that her assignment to that Chamber was temporary, only for the purpose of the preparation of the two Kenya cases for trial. REDACTED.

[snip]

The Presidency, having considered the matter before it, finds the request to be well founded. In coming to this conclusion the Presidency took particular note of the workload and REDACTED of the Judge as described above.

The second statement in particular makes clear there is more to the Judge’s desire to withdraw than just workload. I have no idea what the other rationale might be — although it’s impossible not to speculate that it is indeed that the Judge does not trust the prosecution to conduct itself fairly in the Kenyatta case. (And no, that’s not a criticism of the Judge!)  Maybe it’s not; maybe the rationale is completely different. But once again we have an optics problem: I think the public has a right to know precisely why a judge who has been so openly critical of the prosecution in an important case wants to be excused from that case. And I fail to see what could possibly justify the Presidency’s decision to redact the additional rationale — with no explanation whatsoever.

We need answers, and we need them sooner rather than later.