WEBVTT

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Hello, I'm Yvonne McDermott Rees,

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and this is my commentary

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to article 41 of the ICC Statute.

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Article 41 sets out the

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procedure for excusal

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or disqualification on the

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grounds of perceived

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or actual bias

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on the part of a judge.

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Rule 35 of the Rules of

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Procedure and Evidence

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require a judge

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to request recusal

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if any circumstances exist

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that might call his or her

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impartiality into question.

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Article 41 sets down some

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examples of such circumstances,

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and this is complemented by

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Rule 34 of the Rules of

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Procedure and Evidence.

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It also outlines the procedure to

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be followed for the

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disqualification of a judge.

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Article 41(2)

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explicitly mentions

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two circumstances that might

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give rise to disqualification.

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The first is the involvement

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with any prior stage of the case

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that they have been allocated

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to in any capacity.

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The second ground listed

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in article 41(2)

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is the involvement at national level

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in a 'related criminal case.'

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Rule 34 supplements

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article 41

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by adding four potential

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further grounds for disqualification.

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First, if the judge has a close relationship

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<v ->- personal or professional --</v>

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with any of the parties.

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Second, involvement in a

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private capacity

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in any legal proceedings

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where the suspect or the

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accused is an opposing party.

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Third, the performance of functions

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prior to taking office

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'during which the judge

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could be expected to have

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formed an opinion on the

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case in question.'

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And fourth,

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the expression of opinions

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that could give rise to objective

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doubts as to

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the impartiality of the judge.

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Under article 41(2)(b),

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only the prosecution

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or the defence may make

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requests for disqualification.

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In Katanga, in 2014,

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the victims' representative filed

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an application for the

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disqualification of

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Judge Van den Wyngaert.

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The majority of the judges

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found that the request was inadmissible,

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as the victims had

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no <i>locus standi</i> pursuant to

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article 41(2)(b).