Lawyers representing war crimes accused Bosco Ntaganda in his trial at the International Criminal Court (ICC) were given a May 20, 2019 deadline last week to file any petition seeking the disqualification of Judge Kuniko Ozaki. According to the court’s Presidency, repetitive defense filings related to the judge’s continued stay on the trial are delaying proceedings against Ntaganda, who has been on trial in The Hague since September 2015.

Judge Ozaki has been at the center of a saga related to her appointment as Japan’s ambassador to Estonia while still serving as an ICC judge. Last month, she resigned the diplomatic post amidst protests from the defense, which sought a stay of proceedings, arguing that her dual role as an ambassador and a judge violated the court’s rules.

The defense motion for a stay of proceedings was rejected by Trial Chamber VI judges, who determined 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. The defense request for disclosure of all information related to deliberations of the Plenary of Judges, which voted two months ago to allow Judge Ozaki to concurrently serve as ambassador and judge, was also rejected by the Presidency.

On May 14, the Presidency rejected a subsequent defense request to reconsider its decision, and faulted Ntaganda’s lawyers for making repetitive filings instead of a disqualification request. “Rather than properly make any such disqualification request, the defense for Mr. Ntaganda has engaged in multiple repeated separate, yet inter-related, procedural filings on various issues,” said the Presidency. It cited rule 34(2) of the Rules of Procedure and Evidence, which requires that requests for disqualification must be made as soon as there is knowledge of the grounds on which the request is based.

The Presidency said while Trial Chamber VI had committed not to issue judgment on Ntaganda’s guilt or innocence before resolution of any request for disqualification, defense lawyers had continued filing procedural motions that caused confusion and delayed trial proceedings. Accordingly, the situation had become untenable and Ntaganda needed to file any disqualification request he wished to bring, by May 20. Other parties and participants to the trial would respond by May 27, while Judge Ozaki had up to June 3 to present comments on any such request.

The defense request would be filed under Article 41(2)(b), which provides that a person being investigated or prosecuted may request the disqualification of a judge if their impartiality might reasonably be doubted.

In seeking the stay of proceedings, defense lawyer Stéphane 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 the judge should be disqualified from the Ntaganda case.

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.

Whereas the Presidency rejected the defense request for reconsideration, one judge who was not named, favored partial disclosure of information as necessary to safeguard Ntaganda’s rights, including to ask and receive information required to properly exercise his right to a defense. This judge nonetheless agreed with the other two that records of deliberations amongst the judges when they took a vote on Judge Ozaki’s continued stay at the court should not be disclosed.

The defense charged that because it was the Japanese government, and not Judge Ozaki who informed the court of her resignation, an appearance was created that Judge Ozaki was not independent from her country’s government.

In response, the Presidency stated that it was under no obligation to provide a detailed public account of a professional matter between the judge and the Japanese government. Nonetheless, to dispel the “false assumption,” the Presidency has released Judge Ozaki’s April 12, 2019 letter to the Presidency announcing her resignation from the ambassadorial position.

Judge Ozaki wrote that there were various criticisms to her personally, which may also lead to the deterioration of public confidence in the court. “I do not wish for this situation to continue nor do I wish to invite further unnecessary confusion which may cause a delay in the proceedings,” she added.

The judge hoped her resignation would support the efficient and expeditious completion of Ntaganda’s trial. Judge Ozaki said she had considered that her responsibility as a non-full-time judge on Ntaganda’s case and her work as Japan’s ambassador to Estonia, for a limited period between completion of deliberations on major factual and legal issues of the judgement and its delivery, was compatible with the court’s rules.