The prosecutor at the International Criminal Court (ICC) has asked judges to reject the two grounds of appeal advanced by Bosco Ntaganda, the former Congolese militia commander, who Trial Chamber VI unanimously convicted last July and sentenced to 30 years in prison.
In the appeal, Ntaganda argued that one of the judges on the chamber that convicted him lacked judicial impartiality. He also claimed that charges against him were not sufficiently specific, which resulted in his improper conviction for 15 criminal acts. Prosecutor Fatou Bensouda said these grounds of appeal erroneously interpret the law and misapprehend the facts. She has accordingly asked judges to dismiss them.
In the appeal for his acquittal, Ntaganda submitted that Judge Kuniko Ozaki, one of the three judges of Trial Chamber VI, had lost her appearance of judicial independence when she assumed duties as a Japanese diplomat while still serving as an ICC judge. He contended that Judge Ozaki violated Article 40(2) of the court’s statute, which provides that ICC judges “shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.”
The prosecution countered that Ntaganda incorrectly interprets Article 40 by suggesting that it has an absolute prohibition for non-full-time judges to perform certain professional activities. Bensouda said: “The Statute does not contain such a blanket prohibition for non-full-time judges. This is in contrast with full-time judges who are prohibited from engaging ‘in any other occupation of a professional nature’ under article 40(3).”
Last June, a majority of the court’s judges rejected a request by Ntaganda’s lawyers for Judge Ozaki’s removal from the trial, after determining that the request did not meet the “high threshold” required to disqualify an ICC judge on the grounds of impartiality. The plenary of judges also termed as speculative the contention by defense lawyers that Judge Ozaki was likely to be biased against Ntaganda because his defense team pushed for her resignation of the ambassadorial post.
According to the prosecution, Judge Ozaki did not lose the appearance of her independence under Article 40, due to the limited time that she was Japan’s ambassador in Estonia while serving as a non-full-time judge in the Ntaganda case. Moreover, the prosecution submitted, there is no known link or interest of Japan and Estonia in the Ntaganda case. The prosecution also argued that Judge Ozaki exercised both functions during a very short period of time (“around one month at most”) and only after completion of the briefing in the case and the trial chamber’s substantive deliberations.
In addition, Bensouda argued that Article 40 decisions by the Plenary are final and not appealable, and that on this basis alone, Ntaganda’s first ground should be dismissed. According to her, no appeal against such decisions is found in the statute. In particular, Articles 81 and 82, “which are to be restrictively interpreted” and which “exhaustively” define rights of appeal, do not include Article 40 decisions among those that are appealable. She said “if article 40 decisions cannot be appealed after the Plenary renders such decisions, they cannot be challenged per se in an appeal against a final judgment.”
Last July, Ntaganda was convicted of 18 counts of crimes against humanity and war crimes committed in 2002 and 2003 while he commanded the Patriotic Forces for the Liberation of Congo (FPLC) militia, the armed wing of the Union of Congolese Patriots (UPC). He was handed a 30-year prison sentence, which he is also appealing.
In the other appeal ground argued in Ntaganda’s November 11 filing, the defense said the trial chamber erred in convicting Ntaganda of at least 15 criminal acts that were not within the scope of the charges that were confirmed. It stated that the chamber erroneously blamed the UPC/FPLC or Ntaganda for all crimes committed in all locations mentioned by the confirmation decision.
However, the prosecutor responded that all charges against Ntaganda are sufficiently specific, and the judges properly convicted him of the 15 criminal acts that he challenges. Bensouda said the 15 criminal acts fall squarely within the scope of the charges against him, and Ntaganda received clear, timely, and consistent information regarding those acts.
Ntaganda filed his appeal against conviction in two parts. The first part, related to two grounds of appeal, was filed last November. The deadline to file arguments on up to 10 additional grounds was extended to January 14, 2020, to accommodate translation of the judgment into Ntaganda’s native language, Kinyarwanda, which the court’s Registry said would be completed in the first week of January 2020. The second filing has not been made public yet.