The Presidency of the International Criminal Court (ICC) has dismissed a defense application for the disqualification of Judge Silvia Fernández de Gurmendi from presiding over the upcoming review of Thomas Lubanga’s the prison sentence. The majority of a 15-judge plenary found that the functions Judge Fernández earlier performed in the Office of the Prosecutor (OTP) were “irrelevant” to the proceedings to determine whether Mr. Lubanga’s 14-year jail sentence should be reduced.

In an August 3, 2015 decision, the judges determined that the functions performed by Judge Fernández when she was employed by the OTP appeared to have been strategic, high-level, and “relatively removed” from the details of the case against Mr. Lubanga. “There might be circumstances where Judge Fernández’s prior functions in the OTP could raise a reasonable doubt as to her impartiality, but the applicant failed to provide any concrete evidence pointing to such circumstances,” the judges ruled.

In March 2012, Mr. Lubanga became the first person to be convicted by the ICC. He was found guilty of conscripting and using child soldiers in active combat during an ethnic conflict in the Congo in 2002 and 2003. As of last month, the former president of the Union of Congolese Patriots and its armed wing, known as the Patriotic Forces for the Liberation of Congo (FPLC), had served two thirds of his sentence. A hearing to determine whether his sentence should be reduced pursuant to Article 110 of the Rome Statute is scheduled for August 21.

On June 15, Mr. Lubanga’s lawyers filed an application for the disqualification of Judge Fernández from the sentence review panel, citing her previous work with the OTP, which they claimed “manifestly cast doubt on her impartiality.” In particular, the defense highlighted Judge Fernández’s roles as Special Adviser and Chef de Cabinet to former Prosecutor Luis Moreno-Ocampo between 2003 and 2006, when she was involved in the application for a warrant of arrest against Mr. Lubanga and the confirmation of charges hearing.

However, according to the prosecution, “a reasonable and well informed observer” would not find the judge biased. Prosecutor Fatou Bensouda, in a July 3, 2015 response, argued that the threshold to disqualify a judge should not be interpreted to encompass all proceedings before the court involving an accused or convicted person. “A judge who has participated in some aspect of the main criminal proceedings should not necessarily be conflicted to review the sentence of a convicted person,” argued the prosecutor.

She stated that the sentence review was of a “limited purpose and nature” not related to the merits of the case, which had already been adjudicated. The prosecutor also stated that Judge Fernández was never directly responsible for investigating and prosecuting Mr. Lubanga.

In written submissions to the plenary, Judge Fernández stated that since being appointed as a judge, she had “systematically” avoided being involved in judicial proceedings arising from any case whose investigations commenced or were conducted during the time she worked for the OTP. The judge considered that “the distinct nature” of the sentence review did not warrant a request for her excusal because it “deals with the reduction of a sentence already imposed and entails the consideration of circumstances that may have arisen after the culpability of the person and corresponding penalty have been already settled by a Trial Chamber and ruled upon by the Appeals Chamber.”

Since the sentence review considers the time that has elapsed since sentencing and any new circumstance that may have arisen since, Judge Fernández did not see how any decisions or determinations that she may have made at the OTP could “color” her evaluation of the specific factors she must consider during the review.

However, two judges on the plenary were in favor of granting the defense request for disqualification. These judges noted that it was a case of “apparent, not actual” bias and the prudent approach would be for Judge Fernández to step aside “so as to protect the judicial process from the charge of bias.” In particular, the two judges were concerned that Judge Fernández’s earlier role with the OTP “might bear some relevance” to one of the factors to be considered by the sentence review panel: Mr. Lubanga’s early and continuing willingness to cooperate with the Court in investigations and prosecutions.

Four judges abstained from the decision due to a lack of sufficient information which “prevented them from formulating a distinct position” on the defense application.