Two International Criminal Court (ICC) judges have declined to recuse themselves from the panel that will determine the reparations that former Congolese vice president Jean-Pierre Bemba will pay to victims of his crimes.
In a memo to the court’s presidency, judges Geoffrey Henderson and Chang-ho Chung deny being biased against Bemba and cite various inaccuracies in his February 28, 2018 request for the disqualification of Trial Chamber III judges. Besides Henderson and Chung, the recusal motion also applied to Judge Joyce Aluoch, but her tenure as a judge at the ICC ended in March.
The two judges, whose redacted memo was published on May 24, said they had carefully reflected on the decisions taken throughout the course of the reparations proceedings and had concluded that there was no need to recuse themselves from the proceedings and no reasons warranting their disqualification.
In the recusal motion, defense lawyer Peter Haynes stated that, given the pattern of rulings issued by Trial Chamber III in the conduct of reparations proceedings, “a reasonable perception of a predisposition” against Bemba arises.
He accused the chamber of being determined to render a reparations order before the adjudication of Bemba’s appeal against his conviction. He also faulted the chamber for excluding the defense from two December 2016 meetings which he said discussed reparations.
According to Haynes, the failure by Trial Chamber III to include Bemba in ex parte meetings concerning reparations and to have the report of these meetings disclosed to Bemba within a reasonable period, gave rise to a reasonable apprehension of bias.
In their memo, the judges termed as inaccurate Bemba’s allegation that parties to reparation proceedings “had an opportunity to make further arguments and engage in discussions” on critical issues relevant to the reparations proceedings “in front of the Chamber.” They said none of the judges, or any of the legal staff on the Bemba case, attended the meetings.
The judges noted that the meetings under question were not initiated by the chamber but by the Trust Fund for Victims (TFV) and that no matters relevant to the proceedings were discussed. They added, however, that the TVF did not inform the chamber that it was organizing meetings with other parties and excluding the defense.
The judges also said that at no time did they state that they intended to issue the reparations order prior to an appeal judgment being rendered. Rather, they had suggested that to do so would be permissible under the court’s framework, as this was the approach taken in the Thomas Lubanga case.
At the time the recusal request was filed, reparations proceedings had been ongoing before Trial Chamber III for up to 18 months. The judges said that during this period, they took logical and necessary steps towards the ultimate goal of issuing the reparations order. “The decision to proceed with these steps was taken after careful consideration of balancing the use of the court’s resources with the Chamber’s obligation to promote the efficient and expeditious conduct of the reparations,” they added.
Furthermore, they said the chamber has always taken steps to assure that Bemba‘s rights in relation to the conviction appeal would be protected. Should his conviction be amended by appeals judges, he would have the opportunity to make submissions on the amendments, as relevant to the reparations order. The chamber has also specified that no execution of any reparations order would occur unless Bemba’s conviction was confirmed on appeal.
Judges Henderson and Chung also dismissed as inaccurate a claim by Bemba that the chamber had permitted victims’ lawyers to instruct the independent experts who were advising judges on the reparations award. They clarified that whereas the chamber had barred meetings between the experts and parties to the proceedings, the legal representatives of victims were contacted to assist in setting up meetings between the victims and the experts.
A plenary session of judges will meet on June 13 to discuss the recusal request.