A Legitimate Need for Disqualification in the Lubanga Case

by Kevin Jon Heller

Thomas Lubanga’s lawyer, Catherine Mabille, has moved to disqualify Judge Silvia Fernández de Gurmendi from Lubanga’s upcoming sentence review on the ground that the judge was involved in the case while working in the Office of the Prosecutor. Here are the relevant paragraphs from the motion:

11… [O]fficial Court documents show that Judge Silvia Fernández de Gurmendi acted as Chef de Cabinet for the Prosecutor, Mr Moreno Ocampo.

12. In particular, Judge Silvia Fernández de Gurmendi was engaged in that capacity during the period between the application for a warrant of arrest against Mr Tomas Lubanga and the confirmation of charges hearing in that case.

13. It follows that a reasonable observer, properly informed, must necessarily conclude that she participated in person in the investigations concerning Mr Thomas Lubanga, participated in the drafting of the application for his arrest, participated in the drafting of the detailed list of charges submitted to the Pre-Trial Chamber for examination and, in general, that she participated at the highest level of the organisation in the proceedings against Mr Thomas Lubanga until December 2006.

14. Witnesses Bernard Lavigne (P-0582) and Nicolas Sebire (P-0583) were called in this case by Trial Chamber I to “testify as to the approach and the procedures applied to intermediaries” to assist the Chamber in ruling on the Defence’s abuse of process application. They confirm that the executive committee established within the Office of the Prosecutor, of which Judge Silvia Fernández de Gurmendi was a member, was regularly consulted on the conduct of investigations and that it directed the course of those investigations.

15. Mr Sebire stated that he had himself attended two meetings of the executive committee, the purpose of which was “[TRANSLATION] to report on the investigation, the progress of the investigation and the evidence gathered by … by the time of appearing before the committee.”

The OTP does not deny that Judge Fernandez was previously involved in the Lubanga case. On the contrary, it simply insists that the test for recusal is whether “a reasonable and properly informed observer would apprehend bias by Judge Fernández in deciding on the early release of Mr Lubanga” — and that the Judge’s “sporadic and general” involvement in the case does not satisfy the test:

13. Finally, the Presidency should consider Judge Fernández’s non-operational and relatively circumscribed role in the Lubanga case resulting from her position as head of JCCD and as a member of ExCom from June 2003 to December 2006. Judge Fernandez was never directly responsible for the investigation and prosecution of the Lubanga case. JCCD is a division of the Office of the Prosecutor entrusted with conducting preliminary examinations; evaluating information pursuant to articles 15 and 53(1); providing advice on whether a reasonable basis to proceed with an investigation exists, and providing advice on issues related to jurisdiction and admissibility, and on cooperation matters. Thus, Judge Fernández would have been involved in the early stages of the proceedings in the Democratic Republic of the Congo (including the Lubanga case), in particular, in the decision to commence an investigation, and in transmitting requests for cooperation, including arrest warrants and investigative missions in the field.

14. As a member of ExCom, Judge Fernández would have participated in the general discussion and approval of the main legal and strategic documents and major investigative and prosecution activities developed by the Investigation and Prosecution Divisions with respect to all the cases from June 2003 to December 2006, including that against Mr Lubanga. However, her intervention would have necessarily been sporadic and general in nature. She was not one of the lawyers involved in investigating or prosecuting the case against Mr Lubanga; although she would have been kept apprised of and approved of various steps as the case proceeded against him during the period of her tenure at the Office of the Prosecutor, her situation is not comparable to that of a prosecution lawyer deeply involved in the case and knowledgeable of its details.

I have great respect for Judge Fernandez. I’m thrilled that she was recently elected President of the Court. And I have no doubt whatsoever that she would not be biased against Lubanga in the sentence review. But that’s irrelevant — because Art. 41(2)(a) of the Rome Statute still requires her disqualification. Here is the text of the provision (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.

The OTP admits that Judge Fernandez has previously been involved in the Lubanga case. Art. 41(2)(a) thus prohibits her from participating in the sentence review as a member of the Appeals Chamber — a judge “shall” be disqualified (not “may” be disqualified) if she has previously been involved “in any capacity” (not in a significant capacity) in the case. End of story.

The OTP, of course, disagrees. Most obviously, it insists that previous involvement in a case requires disqualification only if that involvement would lead a reasonable observer to doubt the judge’s impartiality. But that is not what Art. 41(2)(a) says. There are only two ways to read the provision: (1) as providing two different grounds requiring disqualification — appearance of bias or previous participation in the case; or (2) as establishing an irrebuttable presumption that previous participation gives rise to a reasonable doubt of a judge’s impartiality. The second interpretation is likely correct, given that the provision mentions previous participation “inter alia” as a situation in which a judge “shall” (not “may”) be disqualified from a case. Either way, though, Judge Fernandez must be disqualified from Lubanga’s sentence review.

The OTP seems to recognise that, despite its argument, nothing in the wording of Art. 41(2)(a) actually suggests that previous participation requires disqualification only if a reasonable observer would doubt a judge’s impartiality. It thus insists (para. 7) that “[t]he relevant provisions must be contextually and purposively interpreted according to the rules on interpretation of treaties in the Vienna Convention, and must be applied on a case-by-case basis.” This is typical ICC double-speak, a nudge-nudge, wink-wink to the judges asking them to ignore a clear provision of the Rome Statute simply because the OTP finds it inconvenient. The judges need to say no — although, given their history (Regulation 55, anyone?), there is reason to suspect they’ll simply do what the OTP wants.

Stay tuned…

UPDATE: I made similar points a few years ago. See here.

http://opiniojuris.org/2015/07/10/a-legitimate-case-for-disqualification-in-the-lubanga-case/

7 Responses

  1. Thanks for the post Kevin. When the legislator , prescribe the words : ” might reasonably be doubted on any ground ….” It does imply a substantial test, and not prima facie one.

    The exposure or occupation per se , of an official with material , doesn’t disqualify him at once . it does depend also upon the level and quality of the exposure , and above all :

    The Formation of strong subjectivity , due to such occupation and exposure , so :

    The mind of the judge, has been ” locked ” and he wouldn’t be able to judge impartially anymore.

    That is what the lawyer of Thomas Lubanga, should prove , and not just the the judge , has dealt simply somehow with the materials .

    The words: might, and : reasonably, imply that: not everything, but substantial thinks!! A judge could also be exposed to material , circulated in the media , so what ?? would he be disqualified due to it ?? of course not !!

    Thanks

  2. The drafters of the Rome Statute thought otherwise. You are simply reading the second sentence of Art. 41(2)(a) out of existence.

  3. It’s funny how the states criticized the Court for appointing Judges Kuenyehia and Usacka to the Appeals Chamber (“What cases will they be able to sit on?”) – and then proceeded to elect Judge Fernandez. Everyone knew she’d be seriously contaminated by her OTP involvement. It’s unbelievable that OTP is actually arguing against the applicability of art. 41(2)(a). Might as well elect Ocampo to the bench?

  4. Kevin, once again, read carefully:

    The general guidance and provision is that :

    ” case in which his or her impartiality might reasonably be doubted on any ground ”

    It means, That not any involvement in any capacity or any relation to the case, shall disqualify a judge, but in those cases which form a reasonable ground for disqualification.

    Otherwise ,every occupation with materials or any exposure would disqualify a judge ?? it’s not reasonable !! the demands of that ” job ” , of being a judge , consist of beign able to separate emotions , natural partiality , from judgment itself .

    Such overwhelming approach , shall sow chaos , and hurt public trust in judges .

    So , must be proven , on specific ground , not prima facie .

    Thanks

  5. It is you who is not reading carefully. Again, your interpretation simply wishes the mandatory provision in sentence two — “shall be disqualified” — out of existence. There is no need to prove reasonable doubt concerning impartiality when a judge has previously been involved in a case, because such doubt is irrebuttably presumed. You may think that is a silly rule, but the drafters of the Rome Statute didn’t. (And rightly so. As Richard H. points out above, it is difficult to understand how it could ever appear fair for a judge to sit on a case in which he or she once functioned as a prosecutor.)

  6. Kevin, read carefully:

    This article states clearly:

    ” inter alia ….. ” Means, opening a list of specific possible occurrences for disqualification, but:

    ” might reasonably be doubted on any ground ….” Is the provision, at the head , which sets up the general guidance which reigns over, means , the: concept , the limits , parameter, the factor, the test and the scope .

    Read again my comments , it doesn’t make sense !! Must be on substantial and specific ground proven, otherwise:

    A white judge would be disqualified Vs . black defendant , and so , Israeli one Vs . Palestinian one , Judge with kids Vs. pedophile , so get it Kevin :

    Not everything ,but what forms reasonable ground !! on specific basis , and not vague assumptions ,what is actually , causing the ” lock ” of the mind ,and not just : natural partiality , those are judges Kevin , not clowns .

    So again , the right reading , can’t ignore the words :” Inter alia…” ,means : among others , forming so the possibile occurences ,and not the guiding rule , the reigning concept , which is : reasonable ground ,and everything as stated : ” in accordance with this paragraph ” strictly related to the ” inter alia ” , read again !!

    Thanks

  7. Do the words “before the Court”, in “A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court . . .” mean that the Judge would have appeared in person before the Court or is ‘back office’ involvement necessarily implied?

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