Over the last week, the plenary of Judges at the International Criminal Court (ICC) has dismissed two petitions seeking the disqualification of Judge Marc Perrin de Brichambaut from two cases. In both instances, the judges determined that evidence by defense lawyers did not meet the high threshold for disqualifying a judge on grounds of impartiality.
In a notice issued today, the ICC Presidency said the plenary yesterday dismissed the disqualification request filed by Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud, whose confirmation of charges hearing commences next week. The notice said the plenary’s reasoned decision would be issued later.
Al Hassan, an alleged former head of the Islamic Police in the militant group Ansar Dine in Mali, is accused of religious and gender-based persecution. He sought the removal of Judge Brichambaut from the pre-trial chamber handling his case, arguing that his ongoing membership of French defense and political think tanks and the Conseil d’État suggest that Judge Brichambaut “continues to wear the hat of a French political-military advisor, whilst ensconced in the robes of an ICC judge.”
Defense lawyer Melinda Taylor argued that, since his appointment as an ICC judge, Brichambaut had continued to engage in a variety of professional activities geared to advancing France’s political and military interests. She claimed that in this capacity, the judge had made multiple pronouncements on factual issues yet to be adjudicated in the Al Hassan case, including on the Ansar Dine.
Taylor said the judge had published joint position papers under the name of Le Club des Vingt, maintained a position as administrator of the Forum du Futur, and held honorary membership of the Conseil d’État.
In response, Judge Brichambaut said his personal interest in these organizations is so small that it cannot affect his decision in the confirmation of charges. He said he resigned from Conseil d’État – the France’s Supreme Court – in March 2015 when he was sworn in at the ICC. He stated that although he moderated some debates at Conseil d’État and Forum du Futur, “The task was performed in an entirely neutral fashion, accounting for the different opinions presented and not endorsing one or the other view.”
Judge Brichambaut explained that Le Club des Vingt is an informal group of former officials, diplomats, and academics dedicated to discussing international relations. It is neither a political group nor a lobby, and its members come from different ideological backgrounds and have no current political affiliation, he added. The judge said Forum du Futur is a small NGO whose main activity is organizing public debates on topics in international relations, and its board, which is composed mainly of retired diplomats and international relations experts, meets once a year.
Last week, the plenary of judges dismissed a petition filed by Thomas Lubanga’s lawyers, who sought to disqualify Judge Brichambaut from the chamber handling the former Congolese rebel leader’s appeal against the amount of reparations he is liable. They argued that the judge showed signs of bias when he spoke definitively about issues under litigation, namely the number of victims in the reparations process, methods to be used to identify beneficiaries, and the effect that Lubanga’s release after serving his sentence could have on victims.
Lubanga, who is serving a 14-year prison term, is appealing the US$ 10 million reparations award issued against him in December 2017, terming the amount excessive and contesting the eligibility of several victims set to receive reparations. Delivery of the judgement in the appeal is scheduled for July 18, 2019.
The plenary determined that, in addition to the judge’s statement about the number of reparations beneficiaries “clearly being an expression of information available in the public record and not a personal opinion,” a well-informed, reasonable observer would understand that the figure of 3,000 victims mentioned by Judge Brichambaut was merely provided for illustrative purposes.
Furthermore, the plenary ruled that a reasonable observer would not have considered that the statement on the methodology of identifying reparations beneficiaries demonstrated prejudgement or a lack of impartiality by Judge Brichambaut.
Judge Brichambaut acknowledged making the statements attributed to him by Lubanga’s lawyers. However, he said they were “a fair description of the state of affairs” in the Lubanga case at reparations stage based on public filings. He contended that the defense had not demonstrated the impartiality or existence of conflict of interest that indicated his apparent or potential impartiality.
Both defense teams that sought the judge’s disqualification cited Article 41(2)(a) of the court’s statute, which provides that a judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. The Al Hassan defense also invoked Article 40(2) which states that judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence; and Article 40(3),which requires judges to serve on a full-time basis at the seat of the court.
An absolute majority of judges dismissed Lubanga’s request. They are judges Robert Fremr, Antoine Kesia-Mbe Mindua, Bertram Schmitt, Peter Kovacs, Chang-ho Chung, Raul Cano Pangalangan, Tomoko Akane, Reine Alapini-Gansou, Kimberly Prost, and Rosario Salvatore Aitala. Judges Geoffrey Henderson and Piotr Hofmanski did not attend the plenary session.
Four judges abstained from participating in the plenary decision, as they considered that their participation might place them in a potential situation of conflict due to their responsibilities as judges of the Appeals Division. These are judges Chile Eboe-Osuji, Howard Morrison, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa. Judge Herrera-Carbuccia also abstained from participating in the decision-making, as she is a member of Trial Chamber II handling Lubanga’s appeal against the reparations award.
Last month, an absolute majority of judges declined to remove Judge Kuniko Ozaki from the trial of Bosco Ntaganda. Previous appeals for disqualification of judges at the court have also failed because judges deemed then not to have met the high threshold required to disqualify a judge under Article 41(2)(a) of the court’s statute.