Defense lawyers for Bosco Ntaganda have filed a formal request for International Criminal Court (ICC) judge Kuniko Ozaki to be disqualified from the case of the former Congolese rebel commander. The defense request arises from Judge Ozaki’s 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.

According to defense lawyer Stéphane Bourgon, the judge’s resignation of the ambassadorial post is insufficient to restore the appearance of her judicial independence or impartiality. “Quite to the contrary, Judge Ozaki served for some period of time as a Japanese diplomat, creating an association that is not counter-acted by her subsequent resignation, especially because she denies that her resignation was required to restore her judicial independence,” he added.

Article 41(2) of the court’s statute, which the defense has invoked, 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.

In the May 20 request to the court’s Presidency, Bourgon argues that, because the judge has 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 the party that sought her disqualification. This, he said, now enhances her lack of judicial independence.

On March 4, 2019, 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 is not incompatible with the ICC’s requirements of judicial independence. The defense has said this contravenes the court’s rules on judicial independence.

However, the defense request for a stay of proceedings was rejected by Trial Chamber VI judges, who ruled that a stay of proceedings was not justified at this advanced stage of the trial, in addition to the fact that the defense had not yet filed a request to disqualify Judge Ozaki from the trial.

In the latest filing, Ntaganda’s lawyers contend that neither the disruptive consequences of disqualifying the judge nor the advanced stage of proceedings are proper considerations in whether to disqualify Judge Ozaki. This was because the appearance of impartiality was a necessary condition of a judge, “which must exist on the first day of trial, on the day sentence is pronounced, and every day in between.”

Bourgon stressed that Judge Ozaki assumed her functions as Japan’s ambassador while also deliberating on Ntaganda’s case. This occurred as early as February 13 without anyone at the ICC being informed, he said. Further, he claimed the judge was in Estonia no later than March 26 engaging in activities as a diplomatic representative of Japan.

“Judge Ozaki’s concurrent service as a diplomatic representative of the Government of Japan, for as long as it lasted, was incompatible with her judicial independence. This service could not fail, in the mind of a reasonable observer, to ‘affect confidence’ in her independence,” said Bourgon.

Article 41(2)(a) of the Rome Statute states that a judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. Meanwhile, Article 41(2)(b) permits a person being investigated or prosecuted to request disqualification of a judge if their impartiality might reasonably be doubted.

The defense also faults Judge Ozaki for lacking candor when she requested to become a non-full-time judge by not disclosing to the court’s Presidency that she was going to be appointed ambassador. “Candour from the outset would have allowed the [court’s] Presidency to take steps before Judge Ozaki had entered into service as a Japanese diplomat,” stated the defense. According to Bourgon, the day the judge requested her full-time service to end coincided with the Japan government’s decision appointing her ambassador.

The prosecution and victims’ lawyers opposed the defense request for judges to order a stay of proceedings, but they are yet to make submissions on the request to disqualify Judge Ozaki.