ICC Not Ready to Consider Lubanga Release

Following a hearing earlier this week, the Trial Chamber judges at the International Criminal Court stated that it is premature to consider the release of alleged war criminal Thomas Lubanga. The statement comes a week after the Court indefinitely stayed proceedings after the Office of the Prosecutor (OTP) refused to disclose potentially exculpatory materials because of confidentiality agreements with the document providers, namely the U.N. That decision is being appealed by the OTP, and the trial Court has decided to await the result of the appeal before any discussion of releasing Lubanga.

According to one source, the U.N. and the OTP offered a compromise where the judges would be able to review the documents under U.N. supervision. However, the U.N. refused to allow any note taking during such review, and the proposal was wholly rejected by the Court. In a statement, the judges maintained that both the trial and appeals chambers must be able to study and retain the potentially exculpatory documents in order for proceedings to continue.

Still, the OTP is “confident” that there will be a solution, with U.N. cooperation at the heart of it. Chief prosecutor Luis Moreno-Ocampo reassured that “there will be justice for Lubanga’s victims.” The defense, meanwhile, continued to push for Lubanga’s release and reaffirmed their position that there cannot be justice “without strict interpretation of the law.”

Caught in the middle of the controversy are the alleged victims. Luc Walleyn, representing the victims at the ICC proceedings, recognized the need for justice but also expressed wariness that the Court was being too rigid, asking the Court to act so that “an excess of justice doesn’t lead to injustice.”

Practical concerns regarding Lubanga’s potential release have also put considerable pressure on the ICC. According to Carine Bapita Buyangandu, another lawyer representing the victims, setting Lubanga free would “set fire” to the Ituri region in the DRC. Fears of unrest and violence are yet another factor the Court must weigh in making its decision.

To be sure, the concerns of the victims and their representation are understandable. If the Court stayed the trial because of a procedural technicality then there would certainly be questions about an “excess of justice.” But the issue here – the failure of the OTP to disclose potentially exculpatory documents – is not a minor procedural snag. It bears on the most fundamental rights of the accused, the ability to provide a complete defense. Allowing the proceedings to continue with the defendant stripped of that right would seriously question the legitimacy of the ICC as an institution.

Thus far, the Court has carefully balanced the need for justice against the need for a system that adheres to the highest standards of justice. Even if Lubanga is ultimately released, the Court has set a high standard of integrity in its first trial that should assuage U.S. concerns over the legitimacy of the ICC.

— Dennis Doyle

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