The first ever trial of the International Criminal Court may be over before it starts. Last Friday the Court issued a decision staying the trial of Thomas Lubanga, citing serious concerns over the Prosecution’s non-disclosure of potentially exculpatory documents. According to the Court, the Prosecution interpreted Article 54(3)(e) of the Rome Statute “broadly and incorrectly.” Under that provision, the Prosecution may withhold confidential information if it is used solely as a “springboard” to gather other evidence. The Court held that the Prosecution exceeded the limits of 54(3)(e) by using the confidential evidence itself to build the case against Lubanga. Because of the confidentiality agreements with the information providers (primarily the U.N., which provided 156 of the 207 controversial documents) the Prosecution cannot disclose these potentially exculpatory materials to the Court or the defense.
Currently, the Prosecution is working with the U.N. and the other document providers to obtain consent to disclose the materials, but it has been a slow process. Security concerns have the U.N. reluctant to permit wholesale disclosures of the documents. Whether the providers consent to partially redacted disclosures, and whether any such redactions would diminish the probative value of the potentially exculpatory material remains to be seen.
As a potential solution, the Prosecution submitted “alternatives” to the withheld documents, which allegedly contain the same evidence as the withheld documents. However, without access to the non-disclosed documents, the Court has no basis to determine whether the evidence in the alternative submissions is comparable to the evidence in the withheld documents. Allowing the Prosecution, instead of the Court, to rule on the adequacy of the alternative submissions would compromise the rights of the accused. As a result, the Court rejected this plan and put a stay on the proceedings, which could soon evolve into a complete discontinuance. A hearing to consider the release of Lubanga is scheduled for Tuesday, June 24 at 9:00 p.m. ET.
Releasing Lubanga, an alleged war criminal accused of forced conscription of children under the age of fifteen, would no doubt be a major blow to the international community and the people of the DRC. At first blush, it looks like a complete disaster for the nascent ICC, an institution whose legitimacy has been called into question by its major opponent, the United States. However, while it would be tragic to release a suspected war criminal like Lubanga because of a procedural error, it would represent a resounding declaration that the ICC is committed to justice at the highest costs. The Court acknowledged the gravity of excluding the victims, citizens of the DRC, and the international community from justice by halting the proceedings. Nevertheless, it reasoned that the loss of justice in one particular case does not outweigh the need to preserve the overall integrity of the ICC. Such a determination was courageous given the pressure to get it right during the Court’s inaugural case.
The last thing the ICC wanted was to have a major hitch in its first ever trial. The irony, as it turns out, is that a seamless trial could not have pronounced the same commitment to justice that the Court demonstrated by staying the Lubanga proceedings. There was a high price to pay to solidify the integrity of the Court – a war criminal may be set free. Critics like the U.S. may characterize this as an embarrassment, that in its first ever trial the ICC botched the case and justice was not served. But in reality, the Court shined in its first true test by accepting the consequences in exchange for a long-lasting prospect for international justice. And while the Prosecution deserves blame for its procedural error, there is hope that the Court’s decision will form much needed precedent in otherwise uncharted territory.
At the end of the day, the Court’s decision to stay the Lubanga proceedings, while unintended and unfortunate, should nonetheless come as a forceful message to the United States that the ICC is not some politicized kangaroo court – it is a court of integrity, committed to justice at the highest level.
— Dennis Doyle