"Three International Criminal Court judges who were not household names probably anywhere but in their home countries gained fame or infamy last week.
Judges Joyce Aluoch of Kenya and Cuno Tarfusser of Italy voted 2-1 against Peter Kovacs of Hungary to order ICC Prosecutor Fatou Bensouda to seriously consider reopening her file on the May 2010 Mavi Marmara flotilla, a file which she had closed saying that the case was not grave enough for the ICC...
Aluoch, the presiding judge on the panel, has spent over 20 years as a judge mostly on non-international issues and is a trailblazer in Kenya, the first woman to be appointed to Kenya's highest court.
In a questionnaire she filled out applying to be an ICC judge noted that she thinks a challenge for the ICC is 'being proactive in defining what constitutes war crimes so as to look out for them,' suggesting an aggressive approach to going after crimes not conventionally viewed as major war crimes.
Her international law perspective could likely be heavily impacted by her later service on the UN Committee on the Rights of the Child and the African Union Committee on the same issue, leading her to involvement in UN human rights country reviews in Geneva...
Aside from clearly expanding into the international law arena in a serious way later in her career, this could place Aluoch in the sphere of UN experts who view war more from a more pristine and philosophical human rights law perspective than from a law of war perspective which focuses more on battlefield realities...
Also, the conflicts she has reviewed have not pitted a Western-style military against an adversary purposely using asymmetric abuse of the laws of war, such as fighting systematically from civilian locations, so she is not necessarily, with all of her experience, familiar with the kind of conflict now standard in Israeli-Arab battles.
Tarfusser comes from a very different background.
In his career in Italy he spent decades as a prosecutor, not as a judge.
Some have said that Tarfusser's readiness to second-guess Bensouda stems from his wish that he was the ICC Prosecutor and that he in general is less ready to defer to the prosecution the way judges in many systems do...
Tarfusser also had very little experience with international law or the laws of war with any familiarity with battlefields before joining the ICC, though he had prosecuted terrorism cases and other criminal cases with some international dimensions.
In contrast, Kovacs, while he has spent years as an academic and served in Hungary's constitutional court later in his career, has spent nearly his entire career practicing international law and more specifically focused on the laws of war...
This could explain a perspective more geared toward battlefield realities and the complexities that armed conflict can present to an executive..."