A reader of the blog has written pointing out that the two ‘contaminated judges’ on the Appeals Chamber were not involved in Lubanga, and that they are therefore in a position to hear appeals arising out of that case. But both judges have been involved in decisions in Situation in the Democratic Republic of the Congo, which was and remains the responsibility of Pre-Trial Chamber I. Article 39 of the Statute says that ‘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’. As can be seen, article 39 doesn’t address the issue of a judge who has sat in the pre-trial phase sitting on appeal. But that is easily explained. The drafters of the Rome Statute probably thought this to be an impossible scenario, given the separation of the chambers. Later, when it occurred to the Court that on occasion it might be necessary to draw upon the Pre-Trial or Trial Chambers for a judge to replace a recused judge in the Appeals Chamber, Regulation 12 of the Regulations of the Court was adopted. It says essentially the same thing as article 39.
Does the fact that these judges were involved in proceedings concerning the ‘situation’, at a time when several defendants, including Lubanga, were already identified as cases within that situation, mean that they participated in the case? Can readers of the blog enlighten us on this matter?