Following the conviction and sentencing of Bosco Ntaganda, Judge Kuniko Ozaki has left the International Criminal Court (ICC). Since last March, Judge Ozaki served as a non-full-time judge in Trial Chamber VI, which tried the former Congolese rebel commander. The Presidency of the court assigned Judge Olga Herrera Carbuccia to replace her on the trial chamber panel.

The last six months of Judge Ozaki’s tenure at the court generated some controversy because she briefly served as an ICC judge at the same as serving as Japan’s ambassador to Estonia. Ntaganda’s lawyers claim that, in the process, the judge broke the ICC’s rules on judicial independence and that Ntaganda’s conviction is thus invalid. However, judges at the court have previously rejected similar defense arguments, finding that the Judge Ozaki’s actions did not violate the rules of the court.

Judge Ozaki has been a member of Trial Chamber VI since its constitution in 2014. Whereas her mandate as an ICC judge ended on March 10, 2018, she continued in office in order to complete the Ntaganda trial. As per Article 36(10) of the Rome Statute, a judge assigned to a trial chamber or the Appeals Chamber shall continue in office to complete any trial or appeal whose hearing has already commenced.

Moreover, Article 35(3) of the court’s Rome Statute provides that, based on the workload of the court, the Presidency may decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. In announcing the new composition of Trial Chamber VI, the court’s president, Judge Chile Eboe-Osuji, noted that Judge Ozaki’s term of office “effectively ended” the day the Ntaganda sentencing decision was rendered.

Prior to joining the ICC in January 2010, Judge Ozaki served as Director for Treaty Affairs for the United Nations Office on Drugs and Crime, according to her biography on the ICC website.  She had previously served the Japanese government in various senior positions.

To justify its contention that Judge Ozaki was disqualified from serving on Trial Chamber VI, the defense has cited 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.

In her defense, Judge Ozaki submitted last May that 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.

In rejecting the request to disqualify Judge Ozaki, 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.” Furthermore, 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.

All judges who attended the plenary that ruled on the request dismissed the disqualification request, with the exception of four judges in the Appeals Division who abstained because they considered that their participation might place them in a potential conflict of interest 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 judges that ruled against the disqualification 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. Judges Robert Fremr, Geoffrey Henderson, Piotr Hofmański, Chang-ho Chung, and Cuno Tarfusser are not mentioned in the decision either among those who attended or abstained.

Ntaganda has up to January 14, 2020 to file the last of his appeal arguments. In the meantime, Judge Chang-ho Chung has been named the single judge of the reparations phase of the case.