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

by Kevin Jon Heller

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.

http://opiniojuris.org/2013/04/29/further-thoughts-on-judge-van-den-wyngaerts-role-in-the-kenyatta-case/

7 Responses

  1. David K has already stated something similar in the comments to the preceding article:
    There is – incidentally – a reason why the presidency issued its already prepared decision only on 26th April and not earlier.
    One of the preparatory duties of the trial chamber V was to rule on the various (frivolous) applications of the accused Uhuru Kenyatta before the trial could start properly with its opening session. Van den Wingaert herself had predicted that this would be one of her last duties (see the last lines of her application, where she describes the beginning of trial as “imminent”). The presidency thus waited for her to co-rule with her two colleagues on the applications, as a last duty, before replacing her with Fremr.

  2. I still do not understand this point about one of the parties being prejudiced. Either Judge van den Wyngaert hasn’t prejudged the evidence, in which her replacement has no consequences vis-a-vis the ultimate determination or guilt, or she has and arguably shouldn’t take part in the trial in any event.
    Although I am open to being enlightened, I am not aware of any law of criminal procedure anywhere to the effect that once a judicial officer gives some preliminary view favourable to the case for one side the court system is somehow constrained in how it lists the matter for trial. The party is obviously entitled to the enforcement of the decision in which those views are expressed. But are they somehow consequentially entitled to a trial hearing before the same, supposedly sympathetic judge? That strikes me as bizarre.

  3. Anyway, I am disappointed Judge van den Wyngaert is gone since I was looking forward to another Article 25(3)(a) controversy

  4.  
    I’ve already addressed the main points of Kevin’s posts. A few peripheral comments on issues raised by various commenters and by Kevin:
     
    1.       On Nzau’s comment: The Presidency has found that having previously decided on the interpretation of article 25 in another case is not grounds for excusal. See Request for excusal of Judge Trendafilova in the Mbarushimana appeal, granted on other grounds:  http://icc-cpi.int/iccdocs/doc/doc1384854.pdf
     
     
     
    2.       On Rob Clarke’s comments on prejudging the evidence (which I see as a slightly different issue from Kevin’s take): Without taking a position in this discussion, I would point out that there’s already a significant body of Presidency jurisprudence on the question of at what point a judge’s impartiality may reasonably be doubted. Perhaps most illustrative (in addition to the Mbarushimana decision mentioned above) is the discussion in the decision denying the request of Judge Kuenyehia to be excused from appeals proceedings in Ntaganda on the basis of having issued the arrest warrant: http://icc-cpi.int/iccdocs/doc/doc966058.pdf . Another discussion can be found in the decision denying the request of Judge Monageng to be excused in the Gaddafi/Senussi appeals: http://icc-cpi.int/iccdocs/doc/doc1397414.pdf. These decisions concern appeals, so they are admittedly very different from the present case, but the principles are similar. One interesting aside to consider in the present context is article 39 (4): “under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case” – a very categorical rule.  If the Trial Chamber judges had decided to revisit the confirmation decision, could they have continued to sit on the trial?
     
     
     
    3.       On publicity: I fully share Kevin’s frustration with following proceedings via the ICC web site, and I don’t want to make any excuses for the Court in this situation – note that the Presidency decision still only appears in the Kenyatta records but not in the Ruto or Presidency decisions parts of the web site. Hopefully someone at the Court is reading and taking note. That said, the confusion in this particular case stems as much from the hyperactive media in Kenya (see Mark Kersten’s excellent post at the Justice in Conflict blog) and critically on whoever publicized the filings doing so selectively, sowing further confusion. To give some context, Alexander’s assessment that the Presidency awaited the decision on the defence application before excusing Judge Van den Wyngaert seems very intuitive. This means that on 26 April (the day the documents were all filed), the order of decisions would have been (1) decision on defence application, (2) Presidency decision on request for excusal, (3) Presidency decision on replacement (making also decision 2 public).  Even if the decisions were drafted in advance, this process still takes some time, making it likely that the decisions were only filed late on a Friday . The Court has gotten better at not issuing important decisions late on Fridays or having people around to upload significant decisions after regular hours. It definitely still could improve, but this is likely one instance where they did not foresee the selective and misleading publication of Court documents on a relatively routine issue.  But again – the lesson is that the Court needs to do more to adapt to this hyperactive media environment.
     

  5. @Rob Clarke – The question I think is that if a conflict of interest existed, then Judge Wyngaert could not have been on the Bench in the first place. Clearly that is not the case. For a judge to recuse herself after passing remarks clearly adverse to the Prosecution is strange. The OTP is held to a high standard in terms of the rights of the accused. Already in Muthuara, a lead prosecution witnesses’ recanting has led to dismissal of charges. The point then is, if the Prosecution hasn’t allegedly handled these bunch of cases properly, and one judge noted that, why did that judge recuse herself and not stay on the Bench, in the very least to write a dissent that the accused could have appealed on the basis of. 

  6. I agree with Mr. Clark– I would have appreciated another 25 (3) (a) argument as well!

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