By Kevin Jon Heller, Opinio Juris, 24 March 2009
At their most recent meeting, the judges of the ICC rearranged the composition of the Court’s three Divisions. The new composition is as follows:
The judges assigned to the Pre-Trial Division are: Judge Hans-Peter Kaul (Germany), Second Vice-President of the Court; Judge Sylvia Steiner (Brazil); Judge Ekaterina Trendafilova (Bulgaria); Judge Fumiko Saiga (Japan); Judge Sanji Mmasenono Monageng (Botswana); and Judge Cuno Tarfusser (Italy).
The judges assigned to the Trial Division are: Judge Fatoumata Dembele Diarra (Mali), First Vice-President of the Court; Judge Elizabeth Odio Benito (Costa Rica); Judge René Blattmann (Bolivia); Judge Sir Adrian Fulford (United Kingdom); Judge Bruno Cotte (France); Judge Joyce Aluoch (Kenya); and Judge Christine Van den Wyngaert (Belgium).
The judges assigned to the Appeals Division are: Judge Sang-Hyun Song (Republic of Korea), President of the Court; Judge Akua Kuenyehia (Ghana); Judge Erkki Kourula (Finland); Judge Anita Ušacka (Latvia); and Judge Daniel David Ntanda Nsereko (Uganda).
What is particularly interesting about the new composition is that two of the judges that ruled on Bashir’s arrest warrant — Judge Kuenyehia and Judge Usacka — are now in the Appeals Division. They will obviously have to recuse themselves from the Prosecution’s appeal, which means that the genocide issue will be decided by a bare majority of the Division. That is unfortunate, because a decision by the full five-judge Appeals Chamber, whether yea or nea on genocide, would likely be seen as more fair than a three-judge decision, especially if the three judges don’t reach a unanimous conclusion. I’m just glad that Judge Nsereko has been assigned to the Appeals Division and will hear the appeal — he is an exceptional international criminal law scholar and will no doubt be an equally exceptional appellate judge.