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Can Lubanga’s Appeal Meet “High Threshold” Needed to Disqualify an ICC Judge?

Next week, the Plenary of Judges at the International Criminal Court (ICC) will decide on an appeal filed by Thomas Lubanga for the disqualification of Judge Marc Perrin de Brichambaut from the chamber handling the former Congolese rebel leader’s appeal against the amount of reparations for which he is liable.

Previous appeals for disqualification of judges at the court have failed because they were deemed not to have met “the high threshold” required to disqualify a judge under Article 41(2)(a) of the court’s statute. Besides the current appeal lodged by Lubanga, which the Plenary of Judges will discuss on June 17, 2019, a separate appeal lodged by Bosco Ntaganda’s lawyers is pending before the court’s Presidency, seeking Judge Kuniko Ozaki’s disqualification from his trial.

In March 2012, Trial Chamber I convicted Lubanga, the former leader of the Union of Congolese Patriots (UPC) rebel group, of the war crimes of conscripting and enlisting children under the age of 15 years and using them in armed conflict in Congo’s Ituri district. He is currently serving a 14-year prison sentence. Lubanga is also appealing the US$ 10 million reparations award issued against him in December 2017, terming the amount excessive and contesting the eligibility of several victims set to receive reparations.

Lubanga argues that Judge Brichambaut showed signs of bias when he spoke definitively about issues that were under litigation, including the number of victims in the reparations process, methods to be used to identify beneficiaries, and the effect Lubanga’s release after serving his sentence could have on victims.

Two months ago, Judge Brichambaut, who was presiding judge of Trial Chamber II handling Lubanga’s appeal against the reparations award, asked to be recused from his duties and was replaced by Judge Howard Morrison. He also filed a response [PDF] to the defense petition, where he acknowledged making the statements attributed to him. However, he said the statements were not a personal opinion or a revelation of any information, but “a fair description of the state of affairs in the Thomas Lubanga case at the reparation stage” based on public filings.

The appeal arose from a presentation the judge gave at Beijing University on May 17, 2017. The defense faults Judge Brichambaut for allegedly making a personal opinion on a file for which he was responsible without waiting for the documents to be disclosed and parties to the case to file their observations. Defense lawyer Catherine Mabille says expressing those opinions during the proceedings, Judge Brichambaut “objectively cast doubt on the impartiality to which he was bound.”

In his response, Judge Brichambaut said he made an oral presentation at Beijing University without the use of written notes and added that the video of his presentation “required a number of improvements and careful editing” before it was published. However, event organizers did not consult him before publishing it. Nonetheless, the judge said his statements were based on public filings by different court’s organs and did not reflect his personal convictions.

The judge said his statement that 3,000 victims would benefit from the Lubanga reparations “was not a categorical one” and should not be considered as an indication that he had already made a determination on the issue.

Judge Brichambaut contended that the defense had not demonstrated the impartiality or existence of conflict of interest that indicated apparent or potential impartiality by him. Article 41(2)(a) of the statute states that a judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.

In this regard, Judge Brichambaut’s noted that disqualifying a judge from participating in a proceeding at the ICC “is not a step to be undertaken lightly,” as judges enjoy a presumption of impartiality that attaches to judicial office.

Previous judgments on disqualification requests have stressed this position while rejecting the requests. In Lubanga’s 2015 petition to disqualify Judge Silvia Fernández de Gurmendi, the Plenary stated that there was “a strong presumption of impartiality that is not easily rebutted.” In the bid to disqualify Judge Cuno Tarfusser from the trial of Jean-Pierre Bemba and others, the Plenary stressed that a high threshold must be satisfied to rebut the presumption of impartiality that attaches to judicial office.

The Plenary added that when assessing the appearance of bias in the eyes of a reasonable observer, “unless rebutted, it is presumed that the judges of the Court are professional judges, and thus, by virtue of their experience and training, capable of deciding on the issue before them while relying solely and exclusively on the evidence adduced in the particular case.”

Lubanga’s application in 2013 for disqualification of Judge Sang-Hyun Song from his appeal also failed. The defense petitioned after the judge had said the Lubanga trial verdict and sentence set “a crucial precedent in the fight against impunity.” The Plenary rejected the defense appeal after determining that the defense had taken these statements out of context. It added that a reasonable observer, noting the entire content and context of the judge’s statements, “would neither have considered them to have been comments regarding the merits of the decisions under appeal, nor related to any of the particular legal issues to be decided on appeal.”

Last year, Bemba sought the disqualification of three judges who were handling reparations proceedings following his conviction for war crimes and crimes against humanity. However, before his request made it to the Plenary, an appeals chamber overturned Bemba’s conviction, ending the reparations proceedings. Two judges whose disqualification he had sought – Geoffrey Henderson and Chang-ho Chung – denied being biased against Bemba and declined to recuse themselves.