Friday, 10 July 2009

Further on the Eating Disorders at the International Criminal Court

A few weeks ago, this blog published a short note about the recent plenary of the judges of the International Criminal Court, which decided not to revise its decision appointing two ‘contaminated’ judges to the Appeals Chamber. Apparently, some members of the Court were upset that confidential information about the Plenary was revealed in this blog. It should be obvious to all that I am not a member of the Plenary, and so I was not the person who breached rules of confidentiality. I only reported what I learned, from a variety of sources. I think that if the judges of the Court want their meetings to be confidential, then they shouldn’t talk to all and sundry about what goes on in those meetings.
This raises the issue of the secrecy of the Plenary meetings. One of the great features of the Court is its transparency. Is there any good reason why the proceedings of the Plenary should be secret? Isn't the public interest served by an open discussion of this issue? To the insiders, there is nothing secret about it. The NGOs know about it. Diplomats know about out. Only the public is kept in the dark.
Apparently one of the developments that provoked the plenary was a report of the Committee on Budget and Finance of the Assembly of States Parties, which is not yet available on the website of the Court. Here are the relevant paragraphs:

1. “Contamination” of judges
107. The Committee received a copy of the letter of the President of the Assembly to the President of the Court, dated 9 April 2009, expressing the concerns of the Bureau at the manner in which the Appeals Division had been composed by the plenary of judges. The Committee also received an informal paper from the Presidency on the matter.
108. The Committee recalled that as of its eighth session, it had “agreed that, before any further proposals were made to increase the provision of legal support in Chambers, the Court should provide a revised staffing structure.” The Committee expressed concern with the financial implications that the composition of the Appeals Division could have in terms of the amount of work the two “contaminated” judges may be able to engage in over the next few years, as well as the impact on any legal officers working with these judges. The Committee requested that a detailed report outlining the scope of the issues, the potential costs for major programme I and the impact on the establishment of efficiency measures within the Court be provided along with a revised staffing structure prior to its next session.

Any reasonable observer will understand the concerns of the Assembly of States Parties. Two of the five judges on the Appeals Chamber cannot sit in appeals that come from the Lubanga, Katanga and Bashir cases. Lubanga is the first (and only) trial, and Katanga will be the second trial when it starts later this year. For the next couple of years, it seems that the two judges will only need to work part time (while their colleagues work overtime, to make up for their absence). What the Committee meant in paragraph 108 is that it will withhold funding for professional assistants to the two judges, given that the need simply is not there. Member States of the Court (who also know about what went on in the Plenary, and not because they read my blog) are studying various proposals on how to address this new situation. Apparently one idea is to change the Rules of Procedure and Evidence so as to allow the Appeals Chamber to sit with three judges. It is certainly naive to think that the story ends with the decision of the judges not to reconsider their decision.


VC Lindsay said...

I am not disagreeing with your basic point. However, I checked the Lubanga confirmation decision, and neither of the two contaminated judges were a part of that decision. I do not believe they are contaminated in the Lubanga case.

Gleb Bogush said...

It is not true,
Judge Kuenyehia was on Lubanga pre-trial bench and was a part of the decisions on the arrest warrant and confirmation of charges.
In Katanga and Bashir cases Judge Kuenyehia and Judge Usacka played active part both.

VC Lindsay said...

Sorry. I stand corrected as for Judge Kuenyehia. I was mistaken, and she cannot sit on any of the appeals coming out of PTC I. But my point is correct in relation to Judge Usacka.