The prosecution and victims' lawyers have opposed a defense request for judges to order a stay of proceedings in Bosco Ntaganda's International Criminal Court (ICC) trial. The defense last week asked Trial Chamber VI to temporarily stay the proceedings until Ntaganda has had the opportunity to litigate the possible disqualification of Judge Kuniko Ozaki from the case.
According to prosecutor Fatou Bensouda, Ntaganda's lawyers have not substantiated the existence of a serious risk of irreversible prejudice to his rights to a fair trial to warrant the "exceptional remedy" of a stay of proceedings. She noted that the "absolute majority" of the court's judges "seriously considered" the matter of Judge Ozaki's re-designation as a non-full-time judgeand determined that her role as Japan's ambassador to Estonia while she continues to serve as a non-full-time judge would not violate the court's rules.
Legal representatives of victims have similarly opposed Ntaganda's request saying it fails to demonstrate the existence of irreversible harm to the accused. They said it is unclear whether the defense is seeking a stay or an adjournment of the proceedings, but neither is warranted. In a joint filing, two victims' lawyers argued that, should the request be understood as one for a stay of proceedings, such a "drastic remedy" should be subjected to stringent requirements as provided for by the court's rules.
Moreover, victims' lawyers said that any adjournment would unduly impact on the expeditiousness of the proceedings and prejudice the victims because it would delay the issuance of the judgment. They noted that, since closing briefs in the trial were submitted almost a year ago and closing arguments heard last August, it is likely that deliberations have progressed significantly.
In the April 1, 2019 request for a stay of proceedings, Ntaganda's lawyers argued that allowing a judge to continue hearing a case where there are substantial grounds to believe that they are disqualified from doing so creates a serious risk of irreversible prejudice to the accused's right to a fair trial.
Lead defense lawyer Stéphane Bourgon also said that failure to immediately stay the proceedings risks tainting the other two judges of Trial Chamber VI "by their participation in deliberations with a Judge who may subsequently be found to have been disqualified at the time of their joint deliberations."
Victims' lawyers rejected this argument as speculative and premature because the motion for disqualification had neither been filed nor decided upon. They said the defense would have to first show an unacceptable appearance of bias or impartiality on the part of Judge Ozaki in order to demonstrate how such appearance would impact her colleagues sitting on the same bench.
That view is shared by the prosecutor, who stated: "The defense has simply stated that it might bring a request concerning this issue before the Presidency or other applicable body at some time in the future when it may obtain additional information."
However, the prosecutor has also argued that there is no legal basis in the ICC's statutory instruments to challenge a decision of the Plenary of Judges. The Plenary voted on Judge Ozaki's redesignation, with 14 judges in favor, three against, and one abstaining. Bensouda said while the defense may decide in the future to explore other procedural avenues to litigate whether Judge Ozaki should be disqualified or the impact of the Plenary's decision on Ntaganda's case, "to-date, the competent body (the Plenary) has definitely ruled on this matter."
Ntaganda's lawyer contends that the appointment of Judge Ozaki as an ambassador places her in violation of Article 40(3) of the Rome Statute, which states that judges 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.
In addition, defense lawyers fault Judge Ozaki for failing to disclose that she had been appointed ambassador when she requested to become a non-full-time judge. This week, Bourgon alleged that the court's Registrar, Peter Lewis, visited Japan last January. He has the Presidency to advise the Registrar to disclose whether the issue of Judge Ozaki's appointment was discussed and whether he informed judges of those discussions.
The defense last week requested the Presidency to disclose in full all correspondence related to Judge Ozaki's request and the full reasoning of judges who supported her request.
Neither Trial Chamber VI nor the Presidency has issued any public response to Ntaganda's requests.