Jean-Pierre Bemba is seeking the disqualification of International Criminal Court (ICC) judges from the panel that will determine the reparations he will pay to victims of his crimes. The former Congolese vice president, who is serving an 18-year sentence for war crimes and crimes against humanity committed in the Central African Republic (CAR), accuses the judges of bias.
According to defense lawyer Peter Haynes, given the pattern of rulings issued by Trial Chamber III in the conduct of reparations proceedings, “a reasonable perception of a predisposition” against Bemba arises. Haynes has requested that a plenary of judges considers Bemba’s request to disqualify the judges pursuant to article 41(2) of the court’s statute.
At the time of Bemba’s original request for recusal, Trial Chamber III comprised of judges Joyce Aluoch, Geoffrey Henderson, and Chang-ho Chung. With the election and swearing in of six new judges to the ICC this year, the chamber has since been reconstituted. Judge Kimberly Prost has replaced Judge Aluoch on the bench of Trial Chamber III. Thus, the recusal request will now likely only apply to judges Henderson and Chung. Judge Aluoch’s nine-year term as a judge at the ICC ended earlier this month.
Article 41(2)(a) provides that a judge shall not participate in a case in which their impartiality might reasonably be doubted on any ground. Article 41(2)(b) permits a person being prosecuted to request the disqualification of a judge. Under Article 41(2)(c), disqualification of a judge is decided by an absolute majority of a panel of all the judges, except the judge that is being challenged.
In June 2013, ICC judges rejected Thomas Lubanga’s appeal for disqualification of Judge Sang-Hyun Song from the bench hearing his appeals against conviction and 14-year prison sentence. The judges said they found no merit in Lubanga’s claims alleging that Judge Song was biased. In the application for disqualification, the defense stated that certain public statements made by Judge Song adversely affected the appearance of his impartiality or possibly evinced actual bias on his part.
In the request for disqualification, Haynes argues that central to Trial Chamber III’s pre-disposition is its determination to render a reparations order before the adjudication of Bemba’s appeal against his conviction. He adds, “There is no justification for a reparations order preceding conviction in this case, nor can this be reconciled with the prior practice of the ICC, or the right of all convicted persons to have a conviction reviewed by a higher tribunal in accordance with law.”
Haynes says judges have revealed their intention to issue a monetary order for reparations against Bemba prior to the judgment on appeal, yet they had earlier indicated that no such order would be made before the ruling on the conviction appeal. He also says Trial Chamber III has rushed the reparations process and denied Bemba the opportunity to comment on each application for reparation, as has been the case at the court. Appeals hearings were held last January and judges are yet to issue a ruling.
Haynes also faults Trial Chamber III for excluding the defense from two December 2016 meetings it says discussed reparations. Prosecution staff involved in the Bemba case, victims’ lawyers, and the Trust Fund for Victims officials allegedly attended the two meetings with the judges. The exclusion of the defense and the failure to order the disclosure of the report of these meetings within a reasonable period “has undermined the fairness of the reparations proceedings, and gives rise to a reasonable apprehension of bias,” said Haynes.
As another ground for alleging the judges’ bias against Bemba, defense lawyers argue that the chamber has permitted the victims’ lawyers to instruct the independent experts who were appointed by judges to advise on determining the reparations. The defense has no access to the experts, which is contrary to natural justice, argues Haynes.
The presidency is expected to pronounce itself on the defense’s application in due course.