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?
3 comments:
Before these two women were even judges on the Court, PTC I had already set the ground rules for the Situation and made all decisions related to the Lubanga pre-trial phase. After the close of the Lubanga pre-trial phase, they joined PTC I. They participated in the pre-trial phase of Katanga and perhaps other cases to be charged in the future.
Article 39 and Regulation 12 both focus on the phases of a case, and not situations. Since they did not participate in the pre-trial phase of the Lubanga case, I would think they will sit on the Lubanga appeal, unless someone shows an actual conflict of interest.
These are two very well qualified judges who will bring experience to the Appeals Chamber. I think it would be unwise to prevent them from serving as appellate judges only because of exposure to evidence coming from the same country as a particular case on appeal. Not all the judges are so experienced as these two, and I am glad they voted for themselves. There is no legal reason preventing them from serving in the appeals chamber.
I am partially in error: one of the two judges participated in the Lubanga pre-trial phase. The other did not. So my points apply to only one of the two judges.
A tricky situation, and one that may turn on the interpretation of the word "case" in Regulation 12. Does the "situation" count as part of the case, or is it wholly separate? These may be issues for the Presidency to decide (which raises more issues, but another day..)
Can Judge Usacka sit on the Lubanga case? In her favour, she only joined PTC1 after Lubanga's confirmation and was not directly involved. However, Judge Usacka was involved in one decision on the Lubanga case, taken by PTC1 after the confirmation decision: www.icc-cpi.int/iccdocs/doc/doc364571.PDF. Admittedly this is only of a technical nature but based on a strict reading of Regulation 12 this decision may be enough to disqualify the Judge.
There may be other issues - surely the whole purpose of Regulation 12 (and Article 39, for that matter), is that a judge is untainted, uncontaminated by any material related to the case that he/she may have seen or any preconceptions that he/she may have formed. Judge Usacka is likely to have handled material concerning, and formed judicial opinions on, large amounts of material relating to Lubanga - either through her work on the DRC situation or on the Katanga case. She has also taken (admittedly non-substantive) decisions on the Ntaganda case (www.icc-cpi.int/iccdocs/doc/doc479828.PDF), which was intended by the Prosecutor to be joined with Lubanga and thereby inherently linked to it.
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