The International Criminal Court (ICC) prosecutor Fatou Bensouda has opposed a defense request for the disqualification of Judge Kuniko Ozaki, noting that there is no evidence to suggest that she could be biased against former Congolese rebel commander Bosco Ntaganda.
In a May 27 filing, Bensouda said the defense had failed to satisfy the high and fact-specific standard of Article 41(2)(a), which provides that a judge shall not participate in any case in which their impartiality might reasonably be doubted on any ground. She argued that a reasonable observer who is properly informed of the circumstances of the disqualification request cannot reasonably and objectively apprehend bias in Judge Ozaki.
Ntaganda’s lawyers this month filed a request for the judge’s disqualification from the trial, which commenced at the ICC in September 2015. They said the judge broke the court’s rules when she served for a brief period last month as Japan’s ambassador to Estonia and as a non-full-time judge on Ntaganda’s trial.
The defense has invoked Article 41(2) of the court’s statute, which states that judges shall not engage in any activity that is likely to interfere with their judicial functions or to affect confidence in their independence.
In her submissions, Bensouda recalled that the Plenary of Judges found by absolute majority that Judge Ozaki’s ambassadorial position would not interfere with her judicial functions or affect confidence in her independence within the terms of Article 40(2).
According to the prosecutor, the defense request for disqualification is effectively requesting reconsideration of that Plenary’s decision and should be dismissed. She also contended that, contrary to the defense’s argument, Article 40(2) does not contain a general prohibition for non-full-time judges to exercise certain professional functions.
Bensouda also argued that Judge Ozaki’s functions as Japanese ambassador to Estonia while being a non-full-time Judge in the Ntaganda case were limited to bilateral relations between two countries that bear no connection to Ntaganda’s case. Moreover, she said, the judge provided “robust assurances” to avoid any appearance of partiality or lack of independence.
In requesting to maintain her position at the ICC while serving as a diplomat, Judge Ozaki stated that the ambassadorial position would neither interfere with her judicial function in the trial nor affect confidence in her independence. Judge Ozaki stated, “If and when it may have any implication on the Ntaganda case, I will refrain from executing my responsibility to that extent or notify the court immediately. I also assure the court that I am ready to return to the seat of the court as necessary to discharge my judicial duties and that, on those occasions, I will not act in any way as the Japanese Ambassador to Estonia.”
The prosecutor also noted that the judge resigned the diplomatic post on April 19, meaning she “held the two positions for a very limited period of time and only after the case was fully briefed, and substantive deliberations regarding the Trial Judgment were completed.”
However, defense lawyer Stéphane Bourgon has argued that the judge’s resignation was insufficient to restore the appearance of her judicial independence or impartiality. Quite to the contrary, he said, Judge Ozaki served for some period of time as a Japanese diplomat, “creating an association that is not counter-acted by her subsequent resignation, especially because she denies that her resignation was required to restore her judicial independence.”
Bourgon also claimed that, because the judge lost the diplomatic position she wanted so much that she was willing to resign from the ICC in order to get it, a reasonable observer cannot fail to apprehend an appearance of bias against Ntaganda who sought her disqualification. This, he said, now enhances her lack of judicial independence.
Judge Ozaki has been a member of the Trial Chamber VI, which handles Ntaganda’s case, since its constitution in 2014. Her mandate as an ICC judge ended on March 10, 2018, but she continued in office in order to complete the Ntaganda trial. As per Article 36(10), a judge assigned to a trial chamber or appeals chamber shall continue in office to complete any trial or appeal whose hearing has already commenced.
Judge Ozaki has up to June 3 to present any comments on the request for her disqualification.