JUDGES in the Appeals Division of the International Criminal Court (ICC) in The Hague are at variance with each other over the politically charged case of ex-president Laurent Gbagbo of Cote d’Ivoire and one of his former ministers, Charles Blé Goudé, who were acquitted of crimes against human but are still being detained.
After their acquittal on January 15, lawyers for Gbagbo and Blé Goudé, expected their clients to be released.
But the two men, who were alleged to have committed their crimes between 2010 and 2011 during the country’s civil war, were however kept in detention, which legal experts said was unprecedented.
The Appeals Chamber ordered that they be detained until the appeal by the Office of the Prosecutor is heard on February 1.
However, having voted in favour of keeping Gbagbo and Blé Goudé in detention, Judge Luz Del Carmen Ibáñez Carranza from Peru on January 18 issued a dissenting opinion on the unfairness within the Appeals Chamber.
She was of the view that the Presiding Judge, who is also President of the Court, Chile Eboe-Osuji from Nigeria, who assigned himself to preside over the appeal, should not have done so.
Judge Ibáñez argued that Judge Eboe-Osuji’s presence as Presiding Judge could undermine the rights of the two men to due process and fair trial.
‘I am of the firm view that there should be clear and transparent procedures in place in the Appeals Chamber for the designation of a Presiding Judge for each appeal,’ she wrote.
‘Those procedures, once in place, must be respected and followed in order to ensure fairness, predictability and transparency of proceedings and, fundamentally, the rights of the parties to have a pre-established judge in proceedings before the Appeals Chamber, and more generally, the Court.’
She noted that three Judges of the Appeals Chamber were already ‘presiding over important pending appeals…’ while two others were not.
Judge Ibáñez said this was happening ‘despite the uncontroversial fact that all Judges in the Appeals Division have the required expertise to preside over any appeal.’
She added: ‘The foregoing demonstrates that the designation of the Presiding Judge in the present case results in an imbalanced distribution of workload, thereby negatively impacting upon the fair and expeditious conduct of the proceedings.’
On January 22, Judge Eboe-Usoji and Polish Judge Piotr Hofmanski, President of the Appeals Division, countered by saying that they regretted Judge Ibáñez’s dissenting opinion because ‘we were not afforded the opportunity of previewing the dissent before it was filed, as such a procedure might have made this joint declaration unnecessary.’
They added: ‘This declaration is compelled, then, by the suggestion of our esteemed colleague to the effect either that there is no procedure that guides the selection of a Presiding Judge in the Appeals Division, or that such procedure as exists was not followed.’
The two judges said that ‘the election of the Presiding Judge in this case followed both the letter and spirit” of the relevant sections of the Appeals Division Practice Manual.
‘And nothing alleged as a fact in our esteemed colleague’s dissenting opinion suggests otherwise,’ they added.
On January 24, Judge Ibáñez reacted by expressing ‘my surprise that the joint declaration was signed by the President of the Court and the President of the Appeals Division in their official capacities, which are of an administrative matter, in order to issue a declaration over a matter of a judicial nature such as the issuance of a dissenting vote.’
She added: ‘This could amount to a misuse of the administrative powers and functions in order to make a declaration over a matter that falls within the discretion of the Appeals Chamber, which is composed of five judges that are equal in status.’
Judge Ibáñez said her dissenting vote was ‘based on legal reasons and was rendered in the exercise of my judicial independence.’
She said that such independence ‘forms part of the fundamental guarantee of due process of law, the proper administration of justice, and the highest democratic principles universally recognised in the exercise of judicial functions.’
Judge Ibáñez concluded: ‘We, judges, are accountable before the international community as a whole and, as such, we should…serve as an example of the importance of observing democratic practices within our institutions.’
An international justice lawyer based in The Hague noted: ‘Judges of the ICC should be engaged not on a permanent, but part-time basis.
‘They’re not only underworked, they are overpaid for what they do.
‘What the judge in question wrote as a dissenting opinion should be no more than an administrative matter sorted out internally.’