International Criminal Court (ICC) judges have dismissed a request by lawyers for Bosco Ntaganda to remove Judge Kuniko Ozaki from the trial of the former Congolese rebel leader.
A majority of the court’s judges determined that the disqualification request did not meet the “high threshold” required to disqualify an ICC judge on the grounds of impartiality. They also termed as speculative the contention by Ntaganda’s lawyers that Judge Ozaki was likely to be biased against Ntaganda for pushing for her resignation of an ambassadorial post.
Last month, Ntaganda’s lawyers asked the court’s Presidency to dismiss Judge Ozaki, arguing that she violated the ICC’s rules when she concurrently served for a brief period last May as Japan’s ambassador to Estonia and as a non-full-time judge on Ntaganda’s trial.
Defense lawyer Stephane Bourgon invoked Article 41(2) of the court’s founding law, the Rome Statute, 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.
However, the majority of judges considered that the disqualification request failed to demonstrate that the circumstances of Judge Ozaki’s tenure as ambassador satisfied “the high threshold necessary to rebut the presumption of impartiality.”
While recalling that the Plenary of Judges authorized the judge’s ambassadorial appointment, the majority also stated that the defense failed to demonstrate a reasonable appearance of bias in the Ntaganda case arising from the circumstances of Judge Ozaki’s appointment, ambassadorship, or resignation from the diplomatic post.
Last March, a majority of the court’s judges determined that Judge Ozaki’s request to continue serving on the Ntaganda trial while holding her ambassadorial post was not incompatible with the ICC’s requirements of judicial independence. They allowed her to continue serving as a non-full-time judge until the end of the sentencing phase.
In the decision made public today, the majority of judges also said Ntaganda’s lawyers had failed to present specific allegations of the appearance of any potential connection between Judge Ozaki’s responsibilities as a judge in the Ntaganda case and those of her role of ambassador.
The defense also 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, who sought her disqualification. However, the majority of judges ruled that this argument was speculative.
According to the decision made public today – but taken on June 17 – judges who voted to dismiss the request are Marc Perrin de Brichambaut, Olga Herrera-Carbuccia, Antoine Kesia-Mbe Mindua, Bertram Schmitt, Peter Kovács, Raul Cano Pangalangan, Tomoko Akane, Reine Alapini-Gansou, Kimberly Prost and Rosario Salvatore Aitala.
Four judges abstained from participating in the Plenary decision, as they considered that their participation might place them in a potential situation of conflict due to their responsibilities as judges of the Appeals Division. These are judges Chile Eboe-Osuji, Howard Morrison,
Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa.
The prosecution opposed the disqualification request on the grounds that there was no evidence to suggest that Judge Ozaki could be biased against Ntaganda. In her own submissions, Judge Ozaki said the defense request did not contain substantive grounds to satisfy the required standard for disqualification. She also stated that the circumstances of her appointment as ambassador did not violate the Rome Statute.
A reading of the decision indicates that all judges who attended the Plenary – except for the four on the Appeals Division – dismissed the disqualification request. The decision does not mention judges Robert Fremr, Geoffrey Henderson, Piotr Hofmański, Chang-ho Chung, and Cuno Tarfusser among those who attended or abstained.