Decision on Victims' Request for Disqualification of Judge van den Wyngaert from the Katanga case

The Plenary of Judges of the International Criminal Court yesterday rejected an application from the victims' representatives for the disqualification of Judge van den Wyngaert from the Katanga case. The victims had wanted Judge van den Wyngaert to be excluded from any considerations of reparations in the case, claiming that her dissents to the trial and sentencing judgments showed bias. Yesterday's decision contains an interesting paragraph on the value of separate and dissenting opinions:

Minority opinions protect judicial proceedings from the influence of forced uniformity, afford necessary impetus for the development of the law and prevent stagnation in decision making... [The Plenary] considered that minority opinions enrich the quality of decisions and improve their clarity from the perspective of the views of the judges thus expressed, and demonstrate to the parties, participants and public at large that a case has been thoroughly assessed. The Plenary considered it a paradox that a bastion of judicial independence was being used as a basis for the disqualification of the Judge.

Of course, it is unavoidable that judges have prior involvement with the case before the reparations stage of proceedings. If the application had been successful, it would have meant that reparations had to be decided upon by a newly-constituted panel of judges, who had not heard any of the evidence during the case.

However, the motion primarily failed because the majority (with three dissenters) held that victims did not have standing to request the disqualification of a judge. Article 41(2)(b) of the Statute refers solely to the Prosecutor and the accused, but victims had argued that Article 21(3) (the 'internationally recognised human rights' provision) called for an expansive interpretation of the provision to include victims. The majority rightly considered that the wording of Article 41(2) was unambiguous in granting the right to request disqualification solely to the parties. It also implicitly rejected the argument that victims become parties, as opposed to participants, at the reparations stage of proceedings, by stating that 'they are indeed important protagonists at the reparations stage.'

Lastly, on the issue of whether the apprehension of bias against one judge on the bench can give rise to an apprehension of bias against the bench as a whole, Judge Chile Eboe-Osuji noted in his separate opinion that not everyone accepts the wisdom of the epigram, "One bad apple spoils the bunch". He accompanied this observation with the following, highly entertaining, footnote:

Notably, the American pop band, the Osmonds, have literally recorded a contradictory note, insisting that ‘One bad apple don’t spoil the whole bunch’.