By Thomas Verfuss
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.
Suspects before (international) courts are presumed innocent until proven guilty, and are entitled to an expeditious trial to resolve the question of their guilt or innocence. Ntaganda has been in ICC custody for more than six years. Since hearings in his case ended on August 30, 2018, the judges are yet to deliver their judgment. He can expect the three judges who have heard his case to work with all their energy on the drafting of the judgment.
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. It has never happened before that an ICC judge leaves before a case [s]he is on is finished. If Judge Ozaki must be replaced, a new judge would have to acquaint himself or herself with the trial record before deliberating on the judgment. That would mean a considerable loss of time. As presiding judge Fremr said during the last trial hearing in August 2018:
“We will now adjourn and the Chamber will deliberate on judgment. I believe I can afford to say that it will not be [an] easy process, since during the last three years we heard numerous testimonies, hundreds, hundreds of documents had been admitted into evidence, parties in their closing briefs and closing statements challenged many complex factual and legal issues, which we will have to take carefully into account. It will certainly take some time, but we will do our best to render our judgment in due course.”
Bosco Ntaganda has been on trial since September 2, 2015. He is accused of war crimes and crimes against humanity, like murder, rape, sexual slavery of civilians and conscription of child soldiers in the eastern part of the Democratic Republic of Congo in 2002/2003. Ntaganda is the alleged Deputy Chief of Staff and commander of operations of the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (UPC/FPLC), an organized armed group involved in the conflicts in Ituri in the east of the DRC.
International courts are often criticized because their proceedings take a long time. The genocide case that Bosnia brought against the Serb-dominated government in Belgrade before the International Court of Justice (ICJ), also in The Hague, lasted 14 years, from 1993 to 2007. But as some ICJ observers have quipped: states are not in custody. The ICJ deals with legal disputes between states and gives legal advice to UN organs. In international criminal courts and tribunals, which mostly hold suspects in custody because of the gravity of the charges and the flight risk, the duration of the detention before conviction or acquittal is a human rights issue. The International Nuremberg Principles Academy is currently conducting a study into the length of ICC proceedings as a reform issue.
Japan is the largest financial contributor to the ICC, ahead of Germany. Some observers of the court suggest that the country and its nationals are therefore treated with more consideration. The first Japanese ICC judge did not even have a law degree.
