In the court case, the Counsel for the Government of Yunkel has requested that Judge Rosemelle Hasty, one of the three Pre-Trial Chamber members assigned to the matter, be disqualified. They justify this request using articles 40 and 41 of the Court’s Statute, which govern judge independence and disqualification, respectively. Before assuming her current position, Judge Hasty wrote a book in which she wrote, “The scourge of Somalia Piracy may someday trigger the ICC’s jurisdiction in a variety of contexts. For example, recruitment and use of juvenile pirates could be tried as a crime against humanity by the International Criminal Court if the Court had personal jurisdiction over parties responsible for this heinous practice.” The Counsel for the Government of Yunkel takes issue with these statements, claiming that they indicate the Judge’s lack of impartiality in the matter. Such a bias would be problematic, given the novel nature of the question of juvenile piracy and its relationship with crimes against humanity.
The crux of the Counsel’s arguments lies in the wording of the Articles that they cite as their grounds for requesting the disqualification. Article 40(2) of the Court’s Statute states, “Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.” The Council takes issue with the confidence aspect, as Judge Hasty’s prior writings have demonstrated her familiarity with the matter of juvenile piracy. She has likely already deliberated on scenarios similar to that currently taking place, as her mention of such a situation in her book indicates. Moreover, she names juvenile piracy a heinous practice, which demonstrates the presence of a bias. The Counsel case makes the case that this indication of a particular leaning is significant enough to damage confidence in Judge Hasty’s impartiality.
Following this conclusion, the Council makes a case for disqualification based on Article 41(2)(a) of the Statute. This clause adds the additional qualifier of “reasonable” doubts regarding any impartiality as the requirement for not permitting a judge to participate in a case. As an inter alia example, Article 41(2)(a) uses the Judge’s prior involvement in any national or ICC cases that also featured the person currently being investigated or prosecuted by the Court. Lastly, the Statute refers to the Rules of Procedure and Evidence as a potential reason for a judge’s disqualification, though this clause is unlikely to be relevant in this case, as the matter in contention is the Judge’s behavior before they assumed their current position. It can be presumed that the Counsel’s opinion is that Judge Hasty’s prior writing creates a reasonable doubt as to her impartiality in the present case.
The Prosecution asserts that there is no reason to consider the provided evidence substantial enough to warrant the Judge’s disqualification. All that the passage indicates is Judge Hasty’s familiarity with the matter of juvenile piracy and its potential legal implications. It is not unusual for judges to be aware of such issues, and if they are, they will almost inevitably develop an opinion regarding the stance that should be taken concerning them. This consideration is particularly relevant in the case of Judge Hasty, who presumably researched the topic to be able to present it in some detail in her book. This prior familiarity and theoretical opinion should not be considered disqualifying in this case, as they are not in most others. For the judiciary to operate, judges’ ability to overcome such biases and investigate the case’s details impartially has to be acknowledged and respected.
The reasonableness of the doubt in question is also not necessarily as significant as the Counsel asserts. The international consensus frowns on any form of child labor, and it is not unusual to hold a strongly negative opinion of the practice. The usage of child soldiers, or pirates, as in this case, is particularly strongly condemned by most people worldwide due to the powerful unethical implications of such an act. As such, Judge Hasty’s description of it as heinous can be taken as purely moral. It is unreasonable to expect judges not to have personal opinions on matters of ethics, particularly ones as universally agreed upon as the one in this case. They still perform their duties in proceedings involving such issues and act according to the law, and the present situation is no exception.
The prosecution does not argue against there being a level of bias, even if it is theoretical, at which the Judge should be disqualified from the case. However, Article 41(2)(a) provides an example of a necessary bias level, which can be used as a baseline and benchmark. In its inter alia clause, the Statute asserts that judges have to be removed from the case if they and the person being prosecuted have been involved in a case before. During such a case, the Judge would have likely formed a personal impression of the individual that may have influenced their future opinions on court decisions. The Council has not established a similar degree of connection throughout their argument. This failure is particularly pertinent because, due to Judge Hasty’s book and the present case having little to no link, the burden of proof is higher than it would be for personal acquaintance.
With no past interactions to imply that the Judge may have a hidden bias, the final option that remains to the Counsel’s argument is to establish evidence of a potent enough inclination to override a judge’s impartial decision-making. However, no such evidence is present in the passage provided to the Court. While Judge Hasty condemns Somali piracy and juvenile piracy, in general, as established above, this judgment is moral. Although she discusses the possibility of a situation such as that before the Court now, she provides no opinion as to how the ICC should rule if presented with such a matter. The act of recruiting and using juvenile pirates is undeniably a violation of their human rights and qualified for a modern ethics-based description as “heinous,” but these facts have little bearing on its status as a crime against humanity.
The Counsel’s case to dismiss Judge Hasty has little merit, as it is based on highly subjective and weak accusations. Most of the cases reviewed by the ICC involve acts that are viewed by an absolute majority of humanity as morally inexcusable. Nevertheless, the Court can operate smoothly and retain the trust of its member states, which is a testament to the judges’ ability to remain impartial while discussing such cases. That a judge should share the same viewpoint as most people and express it publicly in an unrelated matter does not provide grounds for their disqualification. The Council has not supplied any reason to doubt that the present situation lies beyond Judge Hasty’s ability to act rationally and perform her duties as a judge. Hence, her disqualification would be groundless, and the Prosecution requests that the Pre-Trial Chamber rejects the objection of the Counsel for the Government of Yunkel about Judge Hasty’s disqualification.
Reference
International Criminal Court (ICC) Moot Competition | Pace Law School. (2016). Elisabeth Haub School of Law at Pace University. Web.