Thomas Lubanga, the Congolese militia leader serving a 14 year jail term at the International Criminal Court (ICC), wants the president of the court, Judge Sang-Hyun Song, dropped from the chamber handling his appeals against the conviction and sentence.
Mr. Lubanga's lawyer Catherine Mabille in a February 20, 2013 petition raised two grounds for seeking Judge Song's disqualification. She said the judge had made a number of public statements in which he appeared to support the conviction of Mr. Lubanga. Second, the lawyer said Judge Song is the chairman of the United Nations Children's Fund (UNICEF) Korea Board of Directors, yet UNICEF made presentations to the court in support of Mr. Lubanga's prosecution.
As such, Ms. Mabille said the current situation is manifestly likely to create a conflict of interests in which Judge Song's impartiality may be reasonably called into question.
Trial Chamber I of the ICC on March 14, 2012 found Mr. Lubanga guilty of recruiting, conscripting, and using child soldiers in an armed conflict in the Ituri region of the Democratic Republic of Congo. He committed the crimes during 2002 and 2003 while he led the Union of Congolese Patriots (UPC) militia. He was sentenced to 14 years in jail but would serve eight years after deducting the time he had spent in court's detention prior to his sentencing.
According to the defense application, on November 13, 2012, at an occasion marking the 10th anniversary of the founding of the ICC, Judge Song stated that the Lubanga judgment "sets a crucial precedent in the fight against impunity." The defense also quoted a statement the judge purportedly made on December 10, 2012, in which he referred to the "landmark judgment" against Mr. Lubanga.
Ms. Mabille said these statements, which were widely broadcast, showed that Judge Song had expressed "opinions that, objectively, could adversely affect the required impartiality of the person concerned." According to the defense lawyer, "a reasonably informed observer would perforce understand from these statements that Judge Song unreservedly endorses the impugned judgments, which he describes as crucial 'precedents,' specifically in that they impose penalties for the prosecuted crimes and, in convicting the Appellant, put an end to the 'impunity' of their perpetrators."
Ms. Mabille added that these statements also indicated that Judge Song was personally convinced of the existence of the crimes charged, Mr. Lubanga's guilt, and, in general, the merits of the conviction and sentence.
Meanwhile, the defense also referred to a press release dated March 14, 2012, in which UNICEF stated: "As a result of today's landmark ruling, Lubanga is the first warlord to face international justice for using children as weapons of war." The press statement added that "thousands of children, some as young as seven, were recruited and used as fighters, as well as other roles such as porters, cooks and slaves, by all sides."
"That Judge Sang-Hyun Song holds high office in an organization which, in participating in the proceedings, supports the charges against the Appellant and holds positions antithetical to the Appellant's own case establishes the existence of an 'interest' on the part of Judge Sang-Hyun Song," the defense application stated.
The defense cited Article 41(1)(a) of the Rome Statute, which provides that: "A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground."
Also cited by the defense were other grounds for disqualification of a judge, which are stipulated in Rule 34(1)(d). These include personal interest in the case, "including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship with any of the parties," as well as "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."
Furthermore, the defense cited Article 3(2) of the Code of Judicial Ethics, which provides that judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence; and article 4(2) of the same code: "Judges shall avoid any conflict of interest, or being placed in a situation which might reasonably be perceived as giving rise to a conflict of interest".
Mr. Lubanga's appeals against his sentence and conviction were lodged confidentially last December. In the last week of February 2013, he was due to file a response to the prosecution's response to the appeals briefs. The court's prosecutor Fatou Bensouda has filed a separate petition asking judges to raise the 14-year prison sentence.
Besides Judge Song, there are four other judges on the bench handling the Lubanga appeals: Erkki Kourula (presiding), Sanji Mmasenono Monageng, Judge Anita Usacka, and Ekaterina Trendafilova.