Judge Ozaki Must Resign — Or Be Removed

This is truly scandalous — even by the ICC’s standards. Thomas Verfuss explains:

The Hague Judge Kuniko Ozaki wants to leave her position as a full-time judge of the International Criminal Court (ICC) in The Hague to become the ambassador of Japan in Estonia in April.

Her departure from fulltime engagement at the ICC comes before she and two of her colleagues deliver judgment in the The Prosecutor v Bosco Ntaganda case. Judge Ozaki has been sitting alongside Judge Robert Fremr (Presiding) and Judge Chang-ho Chung since they were assigned to the case in July 2014. No date has been publicly announced for the delivery of the judgment.

[snip]

Ozaki wants to continue on the bench for free as a part-time judge when she takes up her new paid job as ambassador in Estonia. A majority of the court’s judges gave her leave to do so during a plenary meeting on March 19, 2019, with three judges dissenting. The dissenting judges expressed the fear that the appearance of judicial independence could be affected and that the matter could lead to a disqualification request or be raised as a ground of appeal by one of the parties, which would mean loss of time and money for the court.

In her memorandum to her colleagues, Judge Ozaki threatens to quit as judge of the ICC altogether if her request to serve part-time is not granted.

The internal memorandum issued by the Presidency after the plenary makes clear that the judges considered only whether Judge Ozaki’s appointment as ambassador would violate Art. 40(2) of the Rome Statute, which provides that “[j]udges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.” Knowledgeable readers might wonder why the judges did not also consider Art. 40(3), which provides that “[j]udges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature.” If Art. 40(3) applied, Judge Ozaki clearly could not remain an ICC judge while serving as an ambassador.

Ah, but here’s the clever part. Judge Ozaki did not simply ask the Presidency to let her take up the ambassadorship — a request that would have violated Art. 40(3). Nor did she even ask the Presidency to let her go part-time in order to accept the position, which might not have run afoul of the letter of Art. 40(3), but would likely have met with more resistance from her colleagues, given that it would have represented an obvious end-run around the provision. Instead, on 7 January 2019, Judge Ozaki asked to stop being a full-time judge as of February 11 “citing personal reasons and without mention of any future activities or occupation.” The Presidency granted that request. Then, on February 18 — one week after her status changed to part-time — she informed the Presidency that she had been appointed ambassador to Estonia. At that point, because she was no longer a full-time judge, Art. 40(3) did not apply to her. Problem solved!

Though I don’t agree — see below — I understand why the majority held their noses and approved Judge Ozaki’s dual appointment. If she followed through on her threat to resign if they did not, the Court would have to start Ntaganda’s trial over: Art. 74(1) of the Rome Statute states unequivocally that “[a]ll the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations.” The only exception is where “one or more alternate judges [were] present at each stage of the trial” — which was not the case in Ntaganda.

(Note to the Presidency: given Art. 74(1), you might want to start assigning an alternate judge for each trial. The OTP urged you to appoint one in Lubanga, but you didn’t.)

To say that Judge Ozaki has acted unethically, however, is a considerable understatement. It is impossible to believe that she did not know about the ambassadorial appointment when she asked to become a part-time judge on January 7. To begin with, there was only six weeks between that date and the date she informed her colleagues she had been appointed, February 18. Even more damning, she chose a date to go part-time, February 11, that just happened to be a week before she made her ambassadorial announcement. Yet she still asked on January 7 to go part-time “citing personal reasons and without mention of any future activities or occupation.”

And then, of course, there is Judge Ozaki’s threat to resign unless she got her way. That was simply overt blackmail, taking advantage of the fact that she knew her colleagues would not want to restart a trial that began more than three years ago.

Let me put this plainly: Judge Ozaki needs to resign or be removed. Whether her ambassadorship will interfere with her duties in the Ntaganda case or affect perceptions of the Court’s independence is not the only issue. On the contrary, there is also Art. 45 of the Rome Statute:

Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.

Judge Ozaki might have acted impartially — we don’t know if she favours conviction or acquittal — but she has certainly not acted conscientiously. She almost certainly lied to the Presidency when she first asked to go part-time. Then she blackmailed her fellow judges. And she accepted an ambassadorship despite the fact that Art. 10(2) of the ICC’s Code of Judicial Ethics specifically provides that “[j]udges shall not exercise any political function.”

I find it baffling that neither the majority nor the minority even reference the Code of Judicial Ethics — especially the majority, who specifically noted that the Rome Statute does not contain an equivalent to Art. 16(1) of the ICJ Statute, which provides that “[n]o member of the Court may exercise any political or administrative function.” The only difference between the Code of Judicial Ethics and the ICJ Statute is that the former is not legally binding. But that is a thin reed indeed, given that Art. 11 of the Code makes clear that its provisions “serve as guidelines on the essential ethical standards required of judges in the performance of their duties.” How can a judge be seen as conscientious within the meaning of Art. 45 if she is willing to so openly flout a central restriction of the Code?

I realise how damaging it would be to the ICC if it had to retry Ntaganda, especially in light of recent events in Bemba and Gbagbo. I am genuinely sympathetic to the position the majority found themselves in. But the Court cannot permit one of its judges to threaten her way into being permitted to accept a professional position that the Code of Judicial Ethics specifically prohibits. The all-too-public spat between the judges over who would preside over the Gbagbo appeal is bad enough. This is simply a bridge too far.

Judge Ozaki must resign. Or the Assembly of States Parties must initiate proceedings under Art. 46 of the Rome Statute to remove her from office.