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

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.