Thomas Lubanga’s lawyers have sought the disqualification of Judge Silvia Fernández de Gurmendi from presiding over the upcoming review of the prison sentence imposed on Mr. Lubanga by the International Criminal Court (ICC) due to “circumstances which manifestly cast doubt on her impartiality.” However, the prosecution requests that the defense application be dismissed because “a reasonable and well-informed observer” would not apprehend bias by the judge.

In a June 29, 2015 application to the court’s Presidency, defense lawyer Catherine Mabille stated that Judge Fernández was the Chef de Cabinet to former ICC Prosecutor Luis Moreno-Ocampo during the period between the application for a warrant of arrest against Mr. Lubanga and the confirmation of charges hearing. At the time, the judge was the director of the Jurisdiction, Complementarity, and Cooperation Division of the Office of the Prosecutor (OTP).

Ms. Mabille said in that position it could be assumed Judge Fernández participated in person in the investigations concerning Mr. Lubanga, drafting the application for his arrest, and drafting the charges submitted to the pre-trial chamber for examination. She said two former prosecution investigators who testified in the Lubanga trial confirmed that an executive committee established within the OTP, of which Judge Fernández was a member, was regularly consulted on the conduct of investigations and the committee directed the course of those investigations.

However, in a July 3 response, Prosecutor Fatou Bensouda said Judge Fernández’s involvement in the Lubanga case as a member of the OTP between 2003 and 2006 was “sporadic and general in nature.” She added that the judge was “never directly responsible” for the investigation and prosecution of Mr. Lubanga.

Article 41(2)(a) of the court’s founding treaty, the Rome Statute, provides that a judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. It states that 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 defense has cited the above article, as well as Article 4(2) of the Code of Judicial Ethics, which provides that 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.

According to Ms. Bensouda, Article 41(2)(a) should not be interpreted as encompassing all proceedings before the court involving an accused or convicted person. She cited the separate nature and confined purpose of the proceedings on early release that require the judges to make a different and specific assessment from the determination of guilt of an accused person.

“The panel’s determination will not be related to the merits of the case, which have already been adjudicated. Instead, the panel will be called to make a determination on separate and post-conviction events,” the prosecutor stated.

Last month, the court named judges Fernández (presiding), Howard Morrison, and Piotr Hofmańsk to an appeals chamber to conduct a review to determine whether to reduce the 14-year prison sentence handed down to Mr. Lubanga in 2012 for using child soldiers in armed conflict. Article 110(3) of the Rome Statute provides that when a convicted person has served two-thirds of their sentence, the court “shall review the sentence to determine whether it should be reduced.”

The judges scheduled July 16 as the date for the review, ahead of which the prosecution, defense, and victim’s lawyers have to file submissions on the review criteria. It is unclear whether the review will go ahead next week before the court’s presidency rules on the application to disqualify Judge Fernández.

This is not the first time Mr. Lubanga’s lawyers are asking for a judge to be disqualified. In 2013, the defense asked the court’s presidency to disqualify Judge Sang-Hyun Song from the bench that was hearing his appeals against conviction and the sentence. The request was rejected.