Judge Kuniko Ozaki has resigned her recent appointment as Japan’s ambassador to Estonia in order to stay on the International Criminal Court (ICC) chamber that is trying former Congolese rebel leader Bosco Ntaganda.
Japan’s foreign affairs ministry on April 23 confirmed to the court’s Presidency the resignation of the judge, whose ambassadorial appointment was to take effect early last month. According to the email from the ministry, the resignation was accepted on April 19.
The majority of the court’s judges voted in March to allow Judge Ozaki to continue serving as a non-full-time judge on Ntaganda’s trial while she executed her diplomatic duties. However, defense lawyers sought a stay of proceedings, arguing that the judge was no longer suitable to serve at the ICC.
Defense lawyer Stéphane Bourgon argued in the April 1, 2019 request that Judge Ozaki’s appointment as an ambassador places her in violation of Article 40(3) of the Rome Statute, which bars judges from engaging in any other occupation of a professional nature.
It is unclear whether the judge’s resignation of her ambassadorial post will put to rest efforts by defense lawyers to have her disqualified from further handling of Ntaganda’s case. On April 30, days after the defense request for a stay of proceedings was rejected by the trial chamber, Bourgon wrote again to the Presidency, requesting judges to reconsider their earlier decision to allow judge Ozaki to continue serving on Ntaganda’s trial.
He argued that Judge Ozaki’s dual roles would negatively “affect confidence” in her judicial independence due to the “profound incompatibility” of judicial independence and executive service. He cited 40(2), which provides that judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.
Bourgon added: “The strong public reaction to recent decisions reinforces the reasonableness of the perception that Judge Ozaki’s service as a Japanese diplomat, and therefore subject to the instructions of her government, would influence her willingness to participate in an unpopular decision, such as an acquittal.”
According to him, separation of judiciary and executive functions is particularly necessary because the ICC is a court of criminal jurisdiction, typically dealing with controversial cases that often implicate state interests, yet the court must assure the appearance of independence from contributing states party.
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. The decision of the plenary of judges allowed her to stay on the chamber until the end of the sentencing phase.
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.
Last month, judges determined that a stay of proceedings as requested by the defense was not justified at this advanced stage of the trial, moreover, before Ntaganda’s lawyers had filed a request to disqualify the judge. They 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.”
However, defense lawyers have also faulted Judge Ozaki for failing to disclose that she had been appointed ambassador when she requested to become a non-full-time judge. They argue that her lack of candor in this regard undermines confidence in her judicial independence.
In the latest filing, Ntaganda’s lawyers contend that the Plenary of Judges has the power to reconsider decisions already taken, and that in Judge Ozaki’s case, the need for reconsideration is particularly evident because two judges who participated in the deliberations have been excused on the basis of an “evident risk” of an appearance of bias. Defense lawyers also stressed that no submissions were heard from the defense or the prosecution before the Plenary endorsed the judge’s request.