ICC Not Ready to Consider Lubanga Release

June 25, 2008

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


ICC Halts Lubanga Trial

June 18, 2008

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


ICC issues fourth DRC arrest warrant

April 29, 2008

The ICC has just made public an arrest warrant originally issued in 2006, against Bosco Ntaganda, a former senior officer with the Patriotic Forces for the Liberation of the Congo (FPLC).  Ntanganda is also a former associate of militia leader Thomas Lubanga, whose trial in The Hague is set to begin in June.  He is charged with recruiting child soldiers to fight in the devastating civil war in the DRC.


First Trial before ICC Scheduled

March 17, 2008

After being canceled once already, the first trial has been scheduled before the ICC, set to begin on June 23.  Thomas Lubanga of the DRC is charged with recruiting child soldiers  during the Congolese civil war.