Thomas Lubanga’s application for Judge Sang-Hyun Song to be disqualified from the bench hearing his appeals against the conviction and 14-year prison sentence handed him by the International Criminal Court (ICC) has been rejected by the plenary of judges.
The plenary of judges unanimously agreed that Mr. Lubanga’s first argument that Judge Song ought to be disqualified due to his public statements was without merit. “The plenary found that the impugned statements, taken in their proper context, would not have led a fair-minded and informed observer … to reasonably apprehend bias,” the judges ruled.
Furthermore, the judges determined that the statements were not of such a nature as to reach the threshold for displacing the presumption of impartiality enjoyed by judges of the court. Regarding Mr. Lubanga’s argument for automatic disqualification of Judge Song due to an interest in the appeals based on his connection to UNICEF-Korea, the majority found that automatic disqualification was not warranted.
On February 20, 2013, Mr. Lubanga’s defense filed an application before the Presidency of the Court for the disqualification of Judge Song, who is also the president of the court. Mr. Lubanga has appealed his conviction, the 14-year jail sentence delivered last July, and the August 7, 2012 decision by the trial chamber on reparations procedures.
According to the defense application, certain public statements made by Judge Song adversely affected the appearance of his impartiality or possibly evinced actual bias on his part. Additionally, the defense submitted that the involvement of the judge in UNICEF-Korea gave rise to a personal interest in the outcome of the appeals, which necessitated his automatic disqualification from the appeals. In the alternative, the defense argued that the Judge Song’s involvement in UNICEF-Korea was “manifestly likely” to create a conflict of interest in which his impartiality might reasonably be called into question.
According to a June 11, 2013 ruling signed by Judge Sanji Mmasenono Monageng, who presided over the bench that handled the impartiality appeal, an absolute majority of the judges dismissed the defense application on both grounds. These were judges Monageng, Cuno Tarfusser, Akua Kuenyehia, Erkki Koumla, Ekaterina Trendafilova, Joyce Aluoch, Christine Van den Wyngaert, Silvia Fernandez de Gurmendi, Kuniko Ozaki, Howard Morrison, Olga Herrera Carbuccia, Robert Fremr, and Chile Eboe-Osuji.
Judge Anita Usacka, while agreeing with the views and conclusions of the majority on the first ground of the defense application, dissented from the majority on the second ground and was of the opinion that Judge Song ought to be disqualified by virtue of his involvement with UNICEF-Korea.
In his defense, Judge Song stated that while it was true that he was the president of the board of directors of UNICEF-Korea, he was not involved in the management of the organization and did not receive any payment from the organization. He also clarified that the UNICEF that is part of the United Nations, rather than the locally constituted UNICEF-Korea, was the one that made presentations in the Lubanga reparations appeal.
On March 14, 2012, Trial Chamber I, presided over by Judge Adrian Fulford, found Mr. Lubanga guilty as a co-perpetrator of recruiting, conscripting, and using child soldiers in the armed wing of the Union of Congolese Patriots (UPC). The judges found that these children were actively used in an armed conflict during 2002 and 2003 in the Ituri region of the Democratic Republic of Congo.
The prosecution has also appealed the sentence, asking judges to hand Mr. Lubanga a longer prison sentence. Victims have appealed the reparations decision. Judges are yet to pronounce themselves on these and Mr. Lubanga’s appeals.
While Mr. Lubanga’s disqualification application was being considered, Judge Song was excused from his functions as part of the bench in respect of this application.
Article 41(2)(a) of the Rome statute sets out the standards of the ICC with respect to judicial impartiality. It states that a judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.
The grounds for disqualification of a judge shall include personal interest in the case, including a spousal, parental, or other close family, persona,l or professional relationship, or a subordinate relationship, with any of the parties. They also include “expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned.”