Ntaganda Defence Reacts to the Judge Ozaki Revelations

Well, that was predictable. The Ntaganda defence has filed two motions relating to the news that the ICC’s judges have permitted Judge Ozaki to simultaneously serve as a judge in the case and as Japan’s ambassador to Estonia.

The first, directed to the Presidency, is styled “Request for Disclosure Concerning the Decision of the Plenary of Judges on the Judicial Independence of Judge Ozaki.” The defence seeks (para. 8), as the title indicates, “to be fully informed of the relevant facts, including in particular, the basis of the Judges’ decision that was memorialized in the 19 March 2019 document to Judge Ozaki,” in order to be able to able to prepare a request to disqualify the judge. Specifically, the defence is asking the Presidency for all information relevant to the following facts (para. 15):

a. Judge Ozaki’s full communications with the Presidency concerning her withdrawal as a full-time Judge;

b. Judge Ozaki’s full communications with the Presidency concerning her appointment as Japanese Ambassador to Japan, including the full text of her 18 February 2019 memorandum to all Judges;

c. The full text of the Presidency’s memorandum of 26 February 2019 to all Judges concerning this matter, to the extent that it contains factual information about the circumstances of Judge Ozaki’s appointment;

d. Any other communications or correspondence between Judge Ozaki and the Presidency, Judge Ozaki and the other Judges as well as between the Presidency and the Judges concerning the facts relevant to Judge Ozaki’s appointment and potential lack of judicial independence; and

e. Any communications by Judge Ozaki with the Government of Japan concerning her appointment as Ambassador to Estonia, in particular if the Presidency was made aware of such correspondence.

The motion’s account of what happened essentially mirrors the one I provided yesterday. But it adds that, according to news reports, Japan formally appointed Judge Ozaki ambassador to Estonia on 12 February 2019 — exactly one day after the date she wanted to be reclassified as a part-time judge. As the motion notes (para. 9), the timing strongly suggests that Judge Ozaki knew full well she was going to be appointed ambassador on January 7, yet nevertheless concealed from the Presidency the real reason for her request.

The second motion is styled “Motion for Temporary Stay of Proceedings.” It asks the Trial Chamber to stay its deliberations in the case until the defence has the opportunity to litigate whether Judge Ozaki should be disqualified. In support of disqualification, it cites (para. 4) the fact of Judge Ozaki’s dual appointment and her conduct in seeking permission to hold both positions. With regard to the latter, the motion notes (para. 10) something that I overlooked — namely, Judge Ozaki’s use of the past tense when she informed her colleagues on February 18 that she “had been appointed as the Japanese Ambassador to the Republic of Estonia.” As the motion notes (para. 11):

Judge Ozaki thus appears to have denied the Judges of any opportunity to persuade her that she must not accept the Ambassadorship. Judge Ozaki instead appears to have given the Judges the limited choice between disqualification, with all the consequences that would entail, and acquiescing to a fait accompli.

This is, of course, Bullying 101: ask for forgiveness, not permission.

Given the serious questions that surround Judge Ozaki’s conduct, I don’t see how the Presidency and Trial Chamber could justify not granting the motions. The case for disqualification is anything but frivolous, given that Judge Ozaki’s appointment as ambassador explicitly violates the ICC’s Code of Judicial Ethics and that three of the Court’s judges believe she should not be permitted to continue as a judge in the Ntaganda case. Indeed, the minority specifically acknowledged, as one of the reasons for their position, the possibility that permitting Judge Ozaki to have a dual appointment would lead to an eventual disqualification request!

Finally, two additional thoughts. First, although I have no insider information, I wonder if the two motions indicate that the defence believes Judge Ozaki is likely to vote to convict Ntaganda. They must have reason for concern, given that recent trials have not exactly turned out well for the OTP.

Second, I can’t help but think that part of the explanation for Judge Ozaki’s deeply troubling conduct is that she is not even a qualified lawyer. (She has a M.Phil. in International Relations from Oxford and taught international law in Japan.) I will be the first to admit that having a qualifying law degree is no guarantee of professionalism. But I still believe, perhaps naively, that lawyers are more likely than non-lawyers to understand the importance of judicial independence — and the need to avoid even the faintest whiff of divided loyalties. Simply contrast Judge Ozaki’s behaviour with the behaviour of ICTY Judge Odio Benito when she wanted to be nominated Vice-President of Costa Rica. As the minority noted, “Judge Odio Benito sought and received approval from the judges of the Tribunal prior to seeking the nomination” and “undertook not to assume any functions or duties of her political office prior to the completion of her judicial tenure.” That is the right way to do things — as any ethical lawyer knows.

Stay tuned. This is going to get worse before it gets better.