Kuniko Ozaki, one of the three International Criminal Court (ICC) judges on the chamber handling Bosco Ntaganda’s trial, has been allowed to continue serving as a non-full-time judge on the case after she takes up an appointment next month as Japan’s ambassador to Estonia.
On March 4, 2019, a majority of the court’s judges determined that Judge Ozaki’s request to continue serving on the Ntaganda trial while holding her ambassadorial post is not incompatible with the ICC’s requirements of judicial independence. The ICC has 18 judges, and under the Rome Statute, an absolute majority of the judges decides questions regarding judicial independence.
The decision allowing Judge Ozaki to continue to serve was supported by 14 judges, while Marc Perrin de Brichambaut, Luz del Carmen Ibáñez Carranza, and Rosario Salvatore Aitala disagreed. Judge Tomoko Akane abstained, whereas Judge Cuno Tarfusser did not attend the session.
Ntaganda’s trial for crimes allegedly committed in the Democratic Republic of Congo in 2002 and 2003 commenced in September 2015, and last September the defense and the prosecution made their closing oral statements. A date for the delivery of the ruling is yet to be announced.
Judge Ozaki has been a member of the Trial Chamber VI, which handles Ntaganda’s case, since its constitution in 2014. Although her mandate as an ICC judge ended on March 10, 2018, she continued in office in order to complete the Ntaganda trial. As per Article 36(10) of the Rome Statute, 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.
With her ambassadorial duties due to commence on April 3, 2019, Judge Ozaki requested the court’s Presidency to allow her to continue as a non-full-time judge on the Ntaganda case until the delivery of judgement or until the end of the sentencing phase. She said the ambassadorial position would neither interfere with her judicial function in the trial nor affect confidence in her independence, as it would be confined to bilateral relations between Estonia and Japan.
“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,” stated the judge. “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.”
In response to Judge Ozaki’s request, the Presidency drew the attention of all judges to Article 40 of the Rome Statute on the independence of judges. Article 40(2) provides that judges shall not engage in any activity that is likely to interfere with their judicial functions or to affect confidence in their independence. Meanwhile Article 40(3) states that judges required to serve on a full-time basis at the seat of the court shall not engage in any other occupation of a professional nature.
A judges’ plenary session noted that the applicable standard to be assessed when considering whether an issue of judicial independence arose in these circumstances is that contained in Article 40(2). The first is the requirement not to engage in any activity likely to interfere with judicial functions. The second is the requirement not to engage in any activity likely to affect confidence in independence. The said failure to satisfy either of them would be determinative of the inconsistency of the proposed activity with the principle of judicial independence.
The majority considered that Judge Ozaki’s ambassadorial role was unlikely to interfere with her judicial functions at the court or affect confidence in her judicial independence. They noted that on her own “exceptional request,” the judge had moved to a non-full-time status, and her judicial functions were confined to the remaining duties in Ntaganda’s case.
Furthermore, the majority ruled that Judge Ozaki’s activities as ambassador would be entirely confined to bilateral relations between Japan and Estonia, and none of these countries is connected to Ntaganda’s case. Article 35(3) provides that, based on the workload of the court, the Presidency may decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis.
However, dissenting judges argued that performing an executive or political function for a country by an individual who remained an ICC judge was likely to affect public confidence in judicial independence. They drew parallels between Judge Ozaki’s request and former International Criminal Tribunal for Yugoslavia (ICTY) judge Odio Benito, who sought and received approval from ICTY judges before seeking nomination as Costa Rica’s vice president. They noted that, unlike Judge Ozaki, the ICTY judge had undertaken not to assume any duties of her political office before completing her judicial tenure.
The minority also said there was “significant risk” that approving Judge Ozaki’s request could result in an eventual disqualification request under Article 41(2)(b) of the Rome Statute in the Ntaganda case or could be raised on appeal. This article provides that a person being investigated or prosecuted may request the disqualification of a judge if their impartiality might reasonably be doubted.