The Presidency’s Erroneous Refusal to Excuse an Appeals Chamber Judge (Updated)

by Kevin Jon Heller

On 11 June 2013, Judge Sanji Mmasenono Monageng asked the Presidency to excuse her from the Appeals Chamber concerning the recent denial of Libya’s admissibility challenge to the case against Saif Gaddafi, which Libya is appealing. Judge Monageng’s request was based on her previous participation (as Presiding Judge) in the Pre-Trial Chamber’s decision to issue an Arrest Warrant for Saif — the same Arrest Warrant that played a critical role in the (differently constituted) Pre-Trial Chamber’s later conclusion that Libya is not currently investigating the same case as the ICC.

Yesterday, the Presidency denied Judge Monageng’s request. Here is its reasoning (emphasis mine):

The Application is dismissed. The Presidency notes that the notice of appeal is not directly contesting the Decision on the Warrant of Arrest or the Warrant of Arrest which the judge issued as a former member of the pre-trial bench. Rather it is challenging the decision of the Pre-Trial Chamber, as currently composed, on the admissibility of the case before the Court, which, in considering whether Libya was investigating the same case as the Court, inter alia, compared the alleged crimes in the Decision on the Warrant of Arrest and the Warrant of Arrest with conduct allegedly under investigation by the Libyan authorities. As such, the excusal is not warranted at present. However, should the situation change, directly or indirectly, and in this vein the Presidency notes that the Document in Support of the Appeal setting out the grounds for the appeal has yet to be filed and the Appeals Chamber has yet to determine the scope of the appeal, the judge may decide to seek a request for excusal.

With respect to the Presidency, this decision is patently incorrect. Here is the relevant provision in the Rome Statute, Art. 41(2)(a), on which both Judge Monageng’s request and the Presidency’s denial focused (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.

As should be obvious, the Presidency’s test for disqualification — whether the judge in question was previously involved in the specific decision being appealed — has no basis whatsoever in the text of Art. 41(2)(a). The provision says “any capacity” in the same case requires (“shall”) disqualification. Judge Monageng presided over the Arrest Warrant decision, which clearly qualifies as participating in “any capacity” in the case against Saif. The Presidency was thus required to disqualify her.

UPDATE: As David Koller points out in the comments, the Presidency abandoned a literal reading of Art. 41(2)(a) in the Lubanga case. In the relevant decision, which involved a request to be excused by Judge Usacka, the Presidency said that “the relevant part of article 41(2)(a) is concerned with disqualification where a judge has previously been involved in any capacity which gives rise to a reasonable ground to doubt his or her impartiality.” There are two problems with this. To begin with, the Presidency’s interpretation makes no sense, because it renders the second sentence of Art. 41(2) completely superfluous, treating it as nothing more than a restatement of the first sentence. To say that is unconvincing is something of an understatement. There are really only two plausible interpretations of the second sentence: that it provides an example of a situation in which the Presidency must, as a matter of law, presume reasonable doubt about impartiality; or that it provides a ground for disqualification that is completely independent of the “reasonable doubt” ground. Either way, the Presidency’s interpretation is incorrect. Indeed, the Presidency’s reasoning (on p. 5) must be read to be believed; it’s difficult to find a better (worse?) example of judges using “teleological” reasoning to defeat a literal interpretation of a provision in the Rome Statute they don’t like.

I also find it troubling that the Presidency thinks its role is to “interpret” (ie, rewrite) the Rome Statute. The Presidency is an administrative body. It is not a Pre-Trial Chamber. It is not a Trial Chamber. It is not the Appeals Chamber. It does not make decisions on the basis of established procedures after adversarial argument. So although I don’t believe interpretation can ever be objective, I also believe that an administrative body like the Presidency should be extraordinarily conservative in its interpretation of the Rome Statute, avoiding readings that deviate too substantially from its text. And its reading of Art. 41(2)(a) is — to put it mildly — anything but conservative.

http://opiniojuris.org/2013/06/19/the-presidencys-erroneous-refusal-to-excuse-an-appeals-chamber-judge/

5 Responses

  1. Kevin, if you’re looking into disqualifications, did you ever notice that there is no mechanism by which the parties can ask for the removal of a judge… The only thing the parties can ask for is for a judge to be fired for misconduct. It’s a little strange in my opinion.

  2. Kevin,
    The Presidency has long since departed from a strict adherence to the precise rule of “any capacity”. This is at least the second instance of the Presidency rejecting a request of Judge Monageng to be excused from an appeal in the Gaddafi case. The prior decision (ICC-01/11-01/11-118-Anx2) was much more nuanced and elaborate in its reasoning. It made clear that the test is not whether the judge was involved in the specific decision under appeal but whether the judge’s previous participation in the case is such that his/her impartiality might reasonably be doubted. I don’t think the Presidency has modified the test with this decision. Note that the Presidency indicates that it may reconsider excusal depending on the scope of the appeal, suggesting that the test is still whether impartiality may reasonably be doubted rather than participation in the decision under appeal.
     
    These decisions departing from the strict, literal interpretation have been occasioned in part by the lack of available judges and considerations of judicial economy. I say this not to defend the Presidency, but merely to explain the background. One can still make a persuasive argument for adhering strictly to the text of art 41 as you do. For the Presidency, having moved from the level of precise rule to the more general standard of impartiality, the challenge is now to draw lines in particular cases such as the present. 

  3. Dov,
    It is unclear whether you are referring to disqualification of a judge from a particular case or removal from office, two very different terms in the Statute.  I assume the former given that’s the issue in Kevin’s post and given your distinction between disqualification and misconduct (removal should refer to the latter not the former).
    Concerning disqualification, Article 41 (2) (b) provides that “[t]he Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph”. Under this provision, parties can request disqualification of a judge if his/her impartiality might reasonably be doubted on any ground. There is no need for there to be misconduct.  Parties have availed of this provision a number of times –Messrs Banda and Jerbo concerning Judge Eboe-Osuji and very recently Mr Lubanga concerning Judge Song in the appeal. Germain Katanga made a different request in relation to Judge Saiga, eschewing article 41, even though the Presidency indicated he could bring such a request.
     
    If I misread you and you are referring instead to removal from office, I would make two observations. First, article 46(2) only provides two grounds for removal – serious misconduct/serious breach of duty or inability to exercise functions. Limitation of the extreme remedy of removal to such grounds is an essential protection of judicial independence.  Second, removal of office is not linked to particular cases and thus to the narrow interests of the parties but to a judge’s functions across the board.  Rule 26 does not specify who may bring such complaints, suggesting it’s not just the parties who may bring complaints.

  4. David, 
    Thank you for the clarifications. I was indeed referring to the recusal situation, and somehow, Article 41(2)(b) uncharacteristically escaped my attention! It’s of course my fault for not reading carefully enough, but the drafting is a little strange. Why complicate things in this way, when the article could have just said that President may “at the request of a judge, or the parties”, etc?
    On the interpretation of the article, I couldn’t agree more with Kevin. It’s a plain disregard for the language of the text. There’s something of a Clintonesque “it depends what the meaning of “shall” is” feel to it…
    PS: I’ve actually just finished reading your brilliant EJIL article on the geographies of international law. thanks for the insights.

  5. Dov, 
    thanks for the kind words on the article. Excellent posts on the Harhoff affair.

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