Yesterday, the Presidency of the ICC issued a decision relating to various requests filing by the Ntaganda Defence following the decision of the plenary of Judges to allow Judge Ozaki to continue to sit on Trial Chamber VI during the deliberations of the case, while taking up a position as Japanese Ambassador to Estonia.
I just wanted to share a few quick thoughts:
1/While I understand it procedurally, I find the distinction between fitness to be a Judge generally and fitness to be a Judge on a particular trial somewhat artificial. The Presidency suggests in its decision that only the latter can be raised by the Defence in a particular case, because general unfitness does not necessarily entail bias in particular proceedings. But if a Judge is unfit to be a Judge at all, how is that not something that can be raised by a Party to a specific case? It does not make sense to me practically.
I also note that the decision considers that determining whether a Judge is fit to be a Judge (independent, impartial, etc) is a purely “administrative” function. This bothers me, because such a determination is at the heart of the judicial process and someone should be accountable for it. Another victory for managerialism?
2/ I find the harsh criticism of the Defence filing strategy, which is accused of obfuscating things and creating unnecessary delays wholly inappropriate. It is not unreasonable for the Defence, faced with an unprecedented scenario, to take all necessary measures to make sure that no procedural mistake is made. But it seems it is always a lose-lose situation for the Defence. If they had gone straight to TC VI with a disqualification request, they might have been told to address the Presidency. Or they might have been told that they lack a factual foundation for the request. If they go to the Presidency with a request for disclosure in order to support their subsequent request, they are told that they are wasting time. The bad faith here is breathtaking.
All the more breathtaking, given the Judges’ collective failure to avoid this mess in the first place, therefore putting the Defense in this difficult situation.
In that respect, the setting of a strict deadline for the Defense to file a disqualification motion before TCVI (par. 24) is frankly incomprehensible. There is no legal basis given for that and there is no reason the Presidency (an administrative body, by its own admission) should be setting deadlines for Parties in a particular case instead of the Trial Chamber to which the case has been assigned. This is wholly inappropriate. The disposition of the decision even goes further as to also set a deadline for any response by the Parties as well as a deadline for Judge Ozaki to respond.
A footnote (fn 30) tells us that “One Judge was of the view that the Presidency could not impose a deadline for the filing of a request for disqualification”. Thank you for letting us know, but it would have been nice to have some insight in what actually justifies this legally.
3/ On the disclosure of information, the Presidency continues to refuse to disclose any information relating to the process that led to the Plenary decision in the first place. I do not understand the lack of transparency here, especially given the storm the decision created. The Presidency cannot hide behind the fact that this is an administrative decision because, as noted above, such a decision goes at the heart of the judicial function of the Court and should be subject to public scrutiny, if only by the Parties to the proceedings.
Apparently, “One judge expressed a contrary view and, rather, would have favoured partial disclosure of information (other than the records of deliberations amongst the judges) as necessary to safeguard the human right to defence of Mr Ntaganda including the right to ask and receive information required to properly exercise his right to a defence” (par. 29). I agree with this anonymous Judge that the Defence should be given an opportunity to access relevant information that might be relevant for any disqualification motion.
My guess is that ultimately, this whole process will go nowhere and will not end with the disqualification of Judge Ozaki. But in the meantime, the whole procedure continues to give us invaluable insight in how the current Judges at the ICC think, and think of themselves, and this is fascinating.