President of the International Criminal Court (ICC), Judge Sang-Hyun Song, has withdrawn from the bench handling an appeal by Thomas Lubanga questioning the impartiality of the judge. However, Judge Song remains a member of the bench handling Lubanga's appeals against his 2012 conviction and sentence.
Judge Song has denied charges by Mr. Lubanga that he would not fairly handle his appeals against the conviction and 14-year prison sentence.
In the petition for Judge Song to be dropped from the chamber handling his appeals, Mr. Lubanga said the judge had made public statements that appeared to support his conviction and that he was a board member of the United Nations Children's Fund (UNICEF) Korea, an organization that supported Lubanga's prosecution.
On February 22, 2013, two days after the accused's lawyers filed the petition, Judge Song wrote to the Vice President of the court, Judge Sanji Mmasenono Monageng, requesting to be excused from the bench handling this appeal "to avoid any question of a conflict of interest."
Judge Monageng accepted Judge Song's withdrawal in relation to the accused's latest application, and appointed Judge Akua Kuenyehia to preside over Mr. Lubanga's appeal.
In his March 8 response to Mr. Lubanga's application, Judge Song defended his impartiality. "I take Mr. Lubanga's application very seriously; it is in all our interest that the highest standards of justice are upheld at this Court," said Judge Song.
In March 2012, trial judges found Mr. Lubanga guilty of recruiting and conscripting children under the age of 15 and actively using them in an armed conflict in the Ituri region of the Democratic Republic of Congo.
He is appealing both the conviction and the sentence. The court's prosecutor, Fatou Bensouda, has filed a separate petition asking judges to raise the 14-year prison sentence. Judges are yet to pronounce themselves on these applications.
In his defense, Judge Song conceded that in remarks at a social event in honor of the court's tenth anniversary last November, he mentioned that in 2012, the court had issued its first verdict in the Lubanga case, which "set a crucial precedent in the fight against impunity and reinforce[d] the Rome statute's growing deterrent effect against perpetrators of heinous crimes against children."
The judge also said he referred to a statement of the Special Representative of the United Nations Secretary General for Children in Armed Conflict, according to which 3,000 child soldiers in Nepal were reportedly released during the trial of Mr. Lubanga.
Judge Song added, however, that his remarks "did not go into any details of the Lubanga case, nor of the legal or factual issues of the pending appeals, nor of any other judicial matter."
The judge noted that the Plenary of the Court had held that in order to determine whether there is an appearance of bias, it would consider "whether the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias" in the judge concerned.
Judge Song said none of the three statements faulted by Mr. Lubanga's lawyers entered into any legal or factual discussion and that they merely recalled facts - notably that Trial Chamber I had convicted Mr. Lubanga, even though this conviction had since been appealed.
In the third statement faulted by Mr. Lubanga, the judge mentioned that the ICC's judicial reparations regime had been initiated for the first time in the Lubanga case.
Judge Song said it was true that he had been involved with UNICEF-Korea for many years, and he had disclosed this at the judges' elections in 2003 and 2006. Since April 2012, he had been elected president of UNICEF-Korea.
However, he was in no way contributing to the actual running of the organization. "I have never received any remuneration from Unicef Korea, nor have I been involved in making any policies or directions," the judge stated.
Furthermore, the judge noted that UNICEF-Korea was one of 36 "National Committees" and that these committed were not part of the United Nations.
Rather, they were independent non-governmental organizations established locally in industrialized countries where the UNICEF program did not run its own projects.
He said the submissions before Trial Chamber I on reparations were made on behalf of the UNICEF program, not the National Committees.
Judge Song stated that neither his statements as president of the court nor his function as president of UNICEF-Korea created an appearance of bias or showed that he had a personal interest in the Lubanga case.
He asked judges to reject Mr. Lubanga's application as unfounded. A ruling is yet to be made on Mr. Lubanga's application.