The ICC and Appeals Division Presidents Defend the Presiding Judge Decision

5. But, it is with the greatest respect that we recall the current procedure for the decision on a presiding judge as described in paragraph 5 of the ‘Appeals Division Practice Manual’ (last updated on 15 May 2018 and circulated during the tenure of the current Appeals Division). It states as follows:

Usually, the decision on the Presiding Judge is taken on a rotational basis, allowing, however, room for flexibility where appropriate (for example, to take account of other work load, specific expertise, or other pending appeals on a related subject assigned to a particular Presiding Judge).

6. While it is neither necessary nor appropriate to engage the discussions among judges, such as resulted in the outcome of the election, it suffices to stress that the election of the Presiding Judge in this case followed both the letter and the spirit of paragraph 5 of the procedure described in the Appeals Division Practice Manual. And nothing alleged as a fact in our esteemed colleague’s dissenting opinion suggests otherwise.

7. On the normative front, it is important to emphasise that the selection of the Presiding Judge in an appeal before the Appeals Chamber cannot – and should not – be done strictly on the basis of automatic rotation alone. For, that will quickly result in too many difficulties (foreseen and unforeseen) for the Court. One only needs to consider the difficulties that may result if a judge is automatically rotated in to preside over a large and complex appeal lodged towards the end of that judge’s tenure at the Court.

I will take the judges at their word about paragraph 5  — unlike the Practice Manual for the other Chambers, the Appeals Division Practice Manual is not available on the ICC website. Colour me surprised, though, that the appeals judges elect the presiding judge for each appeal. I suppose that’s fair, but it raises a number of interesting questions. Do judges nominate themselves? Do they have an election platform? Do they lobby their fellow judges to be elected? Is the vote public or private? The final question strikes me as the most important: would you vote openly against the President of the Court if he was stumping for presiding judge?

Again, I have no reason to believe anything untoward is going on. But the Joint Declaration seems pointless — other than to cattily express Judge Eboe-Osuji’s and Judge Hofmański’s displeasure with Judge Ibañez Carranza for publicly dissenting. At one point, for example, the Joint Declaration says, “We regret, of course, that we were not afforded the opportunity of previewing the dissent before it was filed, as such a procedure might have made this joint declaration unnecessary.” In other words: stop airing our dirty laundry!

I wish the Judges had deigned to explain why Judge Eboe-Osuji’s knowledge of No Case to Answer motions made his appointment so necessary that his fellow judges would elect him despite his obligations in the Jordan appeal. Given the backlash against the “mistrial” in Ruto — from both sides! — I would think his fellow judges would want a fresh set of eyes. Alas, we will probably never know why they still elected him. According to the Joint Declaration (para. 6), “it is neither necessary nor appropriate to engage the discussions among judges, such as resulted in the outcome of the election.”