On 17 May 2017, Judge Marc Perrin de Brichambaut gave a talk at Peking Law School about the role of victims at the ICC. The talk, which was recorded and then transcribed, included a number of shocking comments, such as describing “the Africans” as “a group of 54 countries who provide the suspects and the accused” to the Court. Judge Brichambaut also said that the primary Annex to the Katangareparations order was written by his interns, personally attacked David Hooper QC (one of Katanga’s defence attorneys), and noted that he “doesn’t like… at all” one of the victims’ lawyers in the Lubanga case because she is “even more of a pain than Mr. Hooper.”
Although ignored at the time, Judge Brichambaut’s talk is now the focus of an attempt to disqualify him from the reparations proceedings in Lubanga, which are still ongoing. But that is not the subject of this post. Instead, I want to focus on one of Judge Brichambaut’s statements that seems to indicate that he — and perhaps the entire Trial Chamber — decided to simply ignore a critical appeals provision of the Rome Statute in the Bemba and others case. (The case involving offences against the administration of justice.) Here is what Judge Brichambaut said (emphasis mine):
I sat in the Bemba and others Chamber… Judge [Schmitt], serious German judge, no nonsense: “Interlocutory appeals — I don’t have. None. Full-stop. I agreed, actually, and the Filipino judge also agreed. We all said, “We won’t accept any interlocutory appeal. If they have any questions to make they will make it in the full appeal. That allowed us to reach a decision from the beginning of the trial process to the end of the trial process in 400 days… So we were civil lawyers in Bemba and others. We said interlocutory appeals shouldn’t even exist, we will ignore it.
Here’s the problem: interlocutory appeals do exist. Art. 82(1)(d) of the Rome Statute specifically provides that “[e]ither party may appeal… [a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.”
Art. 82(1)(d) is not a mere suggestion to the judges. On the contrary, Art. 21(1)(a) provides that “[t]he Court shall apply… in the first place, this Statute.” Moreover, and more specifically, Rule 155 of the Rules of Procedure and Evidence (RPE) requires a Chamber to rule on every request for interlocutory appeal:
When a party wishes to appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, that party shall, within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal.
The Chamber shall render a decision and shall notify all parties who participated in the proceedings that gave rise to the decision referred to in sub-rule 1.
It goes without saying — I hope! — that the Trial Chamber in Bemba and othersengaged in judicial misconduct if, in fact, the judges agreed in advance not to grant any interlocutory appeal, even one that satisfied the requirements of Art. 82(1)(d). Rule 24(2) of the RPE specifically provides that a “serious breach of duty occurs” — the kind that justifies removing a judge under Art. 46(1)(a) of the Rome Statute — “where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties.”
Let me extraordinarily clear: I am not claiming that Judge Brichambaut or the other judges in the Bemba and others Trial Chamber committed a “serious breach of duty.” Judge Brichambaut’s comments about Judge Schmitt and Judge Pangalangan were pure hearsay. And although I cannot find a single example of the Trial Chamber granting leave to appeal, my reading of a number of denied requests indicates that the Trial Chamber did address their merits, even if not always persuasively. So it may well be that Judge Brichambaut was simply showing off for the Chinese law students when he said that the Trial Chamber had decided to ignore Art. 82(1)(d).
But even if Judge Brichambaut was engaging in mere puffery, it is impossible to overstate how reckless and damaging statements like these can be — especially by a judge who currently serves as the Second Vice-President of the Court. The ICC will never be seen as credible if its judges openly announce, sincerely or not, that they feel free to ignore important provisions in the Rome Statute they personally dislike.