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Judges Reject Defense Request to Stay Proceedings in Ntaganda’s ICC Trial

International Criminal Court (ICC) judges trying former Congolese rebel commander Bosco Ntaganda have declined a defense request to temporarily stay the proceedings. The request stems from the designation of Judge Kuniko Ozaki as a non-full-time judge. Judge Ozaki, who is one of three judges of Trial Chamber VI, this month ceased being a full-time judge on the case after she was appointed Japan’s ambassador to Estonia.

The judge, who was last month allowed to remain on the case until the end of the sentencing phase, abstained from handling the defense request for the stay. The other members of the chamber, Presiding Judge Robert Fremr and Judge Chang-ho Chung, ruled that a stay of proceedings was not justified at this advanced stage of the trial, moreover before the defense filed a request to disqualify Judge Ozaki from the trial.

In another setback to Ntaganda’s lawyers, the court’s Presidency has rejected their request for full disclosure of all information and communications regarding Judge Ozaki’s request to change status and the full reasoning of judges who supported her request. At a Plenary of Judges last month, 14 judges endorsed Judge Ozaki’s request, three opposed it, and one – Judge Tomoko Akane – abstained.

Stéphane Bourgon, who heads Ntaganda’s defense, argued in the April 1, 2019 request, that Judge Ozaki’s appointment as an ambassador places the judge in violation of Article 40(3) of the Rome Statute, which 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.

He thus contended that failure to immediately stay the proceedings risks tainting the other two judges of Trial Chamber VI “by their participation in deliberations with a Judge who may subsequently be found to have been disqualified at the time of their joint deliberations.”

However, in today’s ruling the Presidency stated that it considers that, “on an apparent view, the requests amount to an exercise in a form of fishing expedition” and that such fishing expeditions have previously been rejected by international tribunals. They said there is currently no legal basis for the requests made by the defense.

According to the Presidency, this decision was taken in consultation with all judges of who participated in the plenary session that endorsed Judge Ozaki’s change of status. However, at their request, judges Fremr and Chung were excused from any participation in considering the defense requests. Besides presiding over Ntaganda’s trial, Judge Fremr is the vice president of the Presidency.

In today’s ruling, judges also rejected a defense request to the Presidency to ask the Registrar to disclose whether during his meetings with Japanese government officials last January the issue of Judge Ozaki’s resignation request was discussed.

In seeking the stay of proceedings, Bourgon argued that Judge Ozaki’s appointment and her conduct surrounding the appointment constituted grounds to believe that she should be disqualified on the basis of lack of independence or appearance of bias. He requested for a temporary stay of deliberations until the defense has had a reasonable opportunity to litigate whether Judge Ozaki should be disqualified from the Ntaganda case.

However, judges Fremr and Chung determined that the defense submissions in support of the necessity of a stay were mostly speculative as they were premised on the expectation that the pending request for disqualification would be granted. They also noted that Judge Ozaki had been appointed ambassador at a very late stage of the proceedings, “more than half a year after the presentation of oral closing submissions, and did therefore not affect the Chamber’s management of the trial or its hearing of the evidence.”

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.

However, judges Fremr and Chung considered that the risk of the chamber’s independence being affected by any potential disqualification, or of public confidence in judicial independence being undermined, was insufficiently substantiated when balanced against the severity of a stay of proceedings.

The trial judges stated that Trial Chamber VI will not issue judgment on Ntaganda’s guilt or innocence before resolution of any request for disqualification. Accordingly, “should the defense file any such request prior to the finalization of the forthcoming judgment, the Chamber will not schedule, or, if already scheduled, defer, the rendering of the judgment.”