Judge Kuniko Ozaki has dismissed accusations by defense lawyers that she flouted International Criminal Court (ICC) rules on judicial independence and professionalism. She has maintained that there are no concrete grounds for her disqualification from the case of Bosco Ntaganda.
In response to a request by defense lawyers for her disqualification from the trial of the former Congolese rebel commander, the judge wrote to the court’s Presidency on May 20, stating that the circumstances of her appointment as Japan’s ambassador to Estonia did not violate the Rome Statute that governs the ICC.
Last month, Ntaganda’s lawyers requested the Presidency to remove Judge Ozaki from the trial over her appointment as Japan’s ambassador and the decision by the Plenary of Judges to permit her to concurrently serve on the Ntaganda trial as a non-full-time judge.
“I believe that the [defense] Request does not contain substantive grounds to satisfy the required standard for disqualification,” Judge Ozaki wrote in her response. She noted that the alleged grounds for disqualification were limited to her activities or behaviors that were allegedly incompatible with her judicial function as a judge of the ICC. Yet, she added, the Plenary had already determined that she did not contravene the court’s rules.
On March 4, 2019, the Plenary voted by majority to grant Judge Ozaki’s request to continue serving on the Ntaganda trial while holding her ambassadorial post, saying this was compatible with the ICC’s requirements of judicial independence. The defense disagrees, citing Article 41(2) which 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.
According to Judge Ozaki, the only new argument in the defense request is the allegation that Ntaganda’s opposition to her dual role as a judge and ambassador, and the request for her disqualification, had negatively impacted her personal interests. However, she dismissed this allegation as speculative.
In its filing, the defense argued that the “negative professional, financial and personal consequences” of the judge’s resignation of her diplomatic position had a detrimental impact on her judicial integrity as a judge on the Ntaganda case and gave “further grounds to doubt whether she can be impartial to the party that has sought her disqualification.”
Defense lawyer Stéphane Bourgon argued that, because the judge lost the diplomatic position she wanted so much that she was willing to resign from the ICC in order to get it, a reasonable observer cannot fail to apprehend an appearance of bias against Ntaganda. This, he said, had enhanced her lack of judicial independence.
However, Judge Ozaki responded that, in resigning, her utmost concern was the efficient and expeditious completion of the Ntaganda case. In the April 21 letter to the Presidency announcing her resignation from the ambassadorial position, Judge Ozaki stated 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.
Judge Ozaki also rejected the defense allegation that she lacked candor by requesting to become a non-full-time judge but not disclosing to the Presidency that she was going to be appointed ambassador. She said the Plenary had all the necessary information when it made the decision on her independence.
The defense has sought permission to respond to Judge Ozaki’s submission.