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Ntaganda’s Lawyer Seeks Stay of Proceedings over Non-Full-Time Judge

Lawyers for Bosco Ntaganda have requested a temporary stay of proceedings in his trial at the International Criminal Court (ICC) following Judge Kuniko Ozaki’s re-designation on the case as a non-full-time judge.

In an April 1, 2019 filing, defense lawyer Stéphane Bourgon asked Trial Chamber VI to temporarily stop the deliberations until Ntaganda has had the opportunity to litigate whether the judge should be disqualified from the case. He said allowing a judge to continue hearing a case where there are substantial grounds to believe that they are disqualified from doing so creates a serious risk of irreversible prejudice to the accused’s right to a fair trial.

On March 4, 2019, a majority of ICC judges voted to allow Judge Ozaki to continue serving on Ntaganda’s case as a non-full-time­ judge when she takes up an appointment this week as Japan’s ambassador to Estonia. The trial is at deliberation stage prior to the issue of the judgement, and the plenary of judges allowed Judge Ozaki to stay on the case until the end of the sentencing phase.

According to Bourgon, 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.”

Judges Marc Perrin de Brichambaut, Luz del Carmen Ibáñez Carranza, and Rosario Salvatore Aitala voted against Judge Ozaki’s continued stay on the Ntaganda’s trial. They 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.

The minority judges drew parallels between Judge Ozaki’s request and a former judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), Elizabeth Odio Benito, who sought and received approval from ICTY judges before seeking the 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.

In his filing, Bourgon has similarly invoked the case of Judge Odio Benito, stating that the ICC judge appears to have acted quite differently. The defense faults Judge Ozaki for lacking candor when she requested to become a non-full-time judge by not disclosing to the court’s Presidency that she was going to be appointed ambassador.

“She requested the end of her tenure as a full-time judge precisely one day before the Japanese cabinet met and confirmed her appointment. Accordingly, it appears that Judge Ozaki not only knew and intended to be appointed Ambassador to Estonia, but was apparently also informed of the details of her appointment, including the exact date on which the cabinet was scheduled to meet and discuss it,” Bourgon said.

According to Bourgon, this suggests that Judge Ozaki was very well-informed of her potential appointment as of January 7, 2019, but she did not mention this “highly relevant fact” to the Presidency for it to determine whether she should be permitted to no longer sit as a full-time judge of the court.

He added that the judge only mentioned her appointment after it had been made, hence the “timing was tantamount to an ultimatum, which was reinforced by the language used by Judge Ozaki in her letter to the judges.”

In that letter, Judge Ozaki asked the Presidency to consider it a request to approve her continuing participation in the Ntaganda case, “or, alternatively, in case my request is denied, my letter of resignation as a judge of this court.”

In their opinion last month, the dissenting judges 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.

Ntaganda’s lawyer contends that the appointment of Judge Ozaki 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.

The defense has filed a separate request to the Presidency to disclose in full all correspondence related to Judge Ozaki’s request and the full reasoning of judges who supported her request.