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Judge Alleges Unfair Treatment by ICC Presidency

An International Criminal Court (ICC) judge, who is the subject of a disqualification request by lawyers for Thomas Lubanga, says the court’s Presidency has broken the rules by erroneously admitting evidence and denying him the right to respond to it.

The Plenary of Judges was scheduled to meet today to decide on an appeal lodged last April by Lubanga, who argues that Judge Marc Perrin de Brichambaut showed signs of bias when he spoke definitively about issues that were under litigation. The comments included the number of victims in the reparations process, methods used to identify beneficiaries, and the effect of Lubanga’s release after serving his sentence could have on victims.

In submissions to the Presidency last Friday, Judge Brichambaut said the decision to admit the evidence violates basic principles of fairness applicable to any judicial proceedings. “The present proceedings suffer from and are vitiated by serious procedural defects,” he argued, adding that, consequently, the Presidency’s June 11, 2019 decision “must be considered to be a nullity and the additional evidence introduced and admitted by way of this decision should not be considered during the Plenary.”

The contested evidence consists of a video recording of Judge Brichambaut speaking at Beijing University in May 2017, during which he made the remarks that Lubanga’s lawyers have taken issue with. The defense submitted the audio-visual evidence last Thursday. The Presidency allowed its admission “in order to have a complete evidential record before the Plenary of Judges.”

In the June 14 “additional observations” Judge Brichambaut submitted, he said many ICC judges consulted by the Presidency said the court’s “constant practice” was to limit the Plenary’s consideration to the disqualification request and the response of the judge in question. Admitting additional evidence through a request for leave to reply “fundamentally alters this established way of conducting such proceedings,” he said, yet the Presidency provided no justification for departing from established practice.

He said the Presidency contravened the notion of fairness, as he ought to have been provided with an opportunity to challenge the evidence introduced and to respond to the defense request for leave to reply. The decision, therefore, contravened Rome Statute Article 74(2), which provides that a decision by the court must be based “only on evidence submitted and discussed before it.”

Brichambaut explained: “It has always been understood that the word ‘discussed’ means that all parties must have been afforded the opportunity to make submissions on the evidence. This principle of the equality of arms between parties is widely regarded as a fundamental element of the right to due process, including in the international criminal tribunals.”

Furthermore, Judge Brichambaut argued that Article 41(2) and Rule 34(2) of the court’s Rules of Procedure and Evidence, which the Presidency invoked, do not provide for a reply or admission of additional evidence. According to him, this rule suggests that, when a request and any evidence are submitted, no further submissions can be made except those of the judge in question.

Judge Brichambaut also argued that even if the court’s rules allowed submission of additional evidence, Lubanga’s video evidence should have been rejected for failing to comply with the court’s requirements. This was because the video evidence is not new, and by failing to place it before the Plenary immediately when he became aware of it, Lubanga had forfeited his entitlement to rely on it.

He cautioned that, as judges tasked with upholding the rule of law and ensuring fair proceedings, they might also want to consider the potential consequences of the standards set by the Presidency on present and future cases concerning the disqualification of judges. “It would not be in the interests of the Court to provide for an opening for systematic harassment of Judges leading to prolonged procedural and evidentiary debates,” he said.