Well, the Gbagbo “No Case to Answer” Appeal Should Be Interesting

Another day, another slow-motion fiasco at the ICC. Today’s episode: Judge Luz del Carmen Ibañez Carranza has dissented from a decision to assign a presiding judge to an appeal.

The appeal in question involves the Gbagbo No Case to Answer decision, about which I blogged extensively yesterday. The President of the Appeals Division appointed Judge Eboe-Osuji, even though he is already the Presiding Judge in Jordan’s appeal concerning its failure to arrest Omar al-Bashir. Judge Ibañez Carranza is not happy about that, because she has yet to be assigned to an appeal as presiding judge.

Three quick thoughts. First, you know things are bad at the Court when disagreement over presiding-judge appointments is spilling out into the public. Presumably, Judge Ibañez Carranza raised the matter with Judge Hofmański, the President of the Appeals Division, before filing her (unprecendented?) dissent. She must not have been satisfied with his response.

Second, Judge Ibañez Carranza has a point. If two judges have not yet been assigned to preside over an appeal (the two women, which is not exactly the best optics), why appoint a judge who is already presiding over one? Especially when that appeal involves Jordan’s non-cooperation, which is perhaps one of the most important — and most complicated — appeals in the ICC’s history. That makes no sense.

Third, the reason Judge Hofmański apparently appointed Judge Eboe-Osuji is deeply troubling. Here is what Judge Ibañez Carranza says (emphasis mine):

6. Turning to the circumstances of the present case, upon my arrival at the Appeals Chamber, I was informed by the President of the Appeals Division that, according to the practice of the Appeals Division, the internal procedure to designate a Presiding Judge for each appeal was based on (a) rotation and (b) seniority. However, this procedure was not followed in the present case. Rather, the decision on the Presiding Judge was adopted on the basis of the alleged expertise of one of the judges on ‘no case to answer’ matters and further to his own proposal. In this regard, it is my humble view that all the Judges in the Appeals Division have the required expertise to preside over any appeal.

Judge Ibañez Carranza is absolutely right about the appeals judges’ expertise. Moreover, nothing good can come of the President of the Appeals Division hand-selecting presiding judges. What is to stop the President from choosing a presiding judge that he or she is confident will steer an appeal toward a particular conclusion? I’m not saying that is what Judge Hofmański is doing here. I don’t believe it is. But the possibility of misusing appointments will always remain, at a non-negligible cost to the Court’s legitimacy.

Moreover, I’m just going to say it: Judge Eboe-Osuji is the last judge that should preside over the Gbagbo No Case to Answer appeal. His “alleged expertise” with NCA motions comes from the Ruto case, in which he simply invented, with no express or implied basis in the Rome Statute whatsoever, the “mistrial without prejudice” remedy for a failed prosecution. That decision, seemingly driven by nothing other than the desire to avoid acquitting Ruto and Sang, is one of the low points in the ICC’s jurisprudence. Indeed, it “inspired” one of the two or three longest posts I have written in my 13 years as a blogger for Opinio Juris. I don’t envy Gbagbo’s attorneys!

I have no idea how all this will play out. But this is a troubling development indeed, both procedurally and substantively. Stay tuned…