More than 30 months after the history-making arrest of Congolese rebel leader Thomas Lubanga Dyilo - the first suspect to be sent to The Hague in the Netherlands to face war crimes charges before the newly-established International Criminal Court (ICC) - a question mark still hangs over whether he will ever face trial.
In July the ICC's Trial Chamber ordered him released from custody. This week the court's Appeals Chamber overturned that decision. What has gone wrong and what happens next? In this question-and-answer feature, the International Center for Transitional Justice explains.
1. Why did the International Criminal Court delay the trial of Thomas Lubanga?
In June 2008, shortly before his trial was scheduled to begin, the Trial Chamber of the ICC found fault with the prosecutor's proposed use of evidence contained in documents provided by the United Nations (UN) and by NGOs. The evidence was in some 200 documents that could include exculpatory material – information that might help the defense prove Lubanga's innocence.
These were documents the prosecutor obtained on a confidential basis. The court ruled that the prosecutor should share that evidence with the Trial Chamber and the defense. Since the prosecutor did not have permission at that time to share the documents, the Trial Chamber halted the proceedings because of fair trial concerns and ordered that Lubanga be released. The prosecutor appealed both rulings to the ICC's Appeals Chamber.
2. What did the Appeals Chamber decide?
On October 21, the Appeals Chamber agreed with the decision to halt the proceedings. It also agreed that at the time the Trial Chamber made its rulings, a fair trial would have not been possible, because the prosecutor could not have shown the confidential evidence to the court and the defense.
But the Appeals Chamber overturned the Trial Chamber's decision to release Lubanga. The Appeals Chamber reasoned that the Trial Chamber had halted proceedings only temporarily, and it had not acquitted Lubanga. There was still a chance that a trial could go forward, if concerns about fairness were addressed
3. So does the trial go forward or not?
For now, that is for the Trial Chamber to decide. There are several new factors for it consider.
One is that the prosecutor has now obtained permission from the UN and from the NGOs to show all the confidential documents to the judges. The Trial Chamber will now be able to assess which documents should be disclosed to the defense, and whether certain limitations – such as requests by the information providers that only summaries or edited versions be released – affect Lubanga's right to a fair trial. The judges are scheduled to review the documents in hearings scheduled for the coming weeks.
4. How did the issue arise about use of confidential documents?
The dispute between the prosecutor and the Trial Chamber was over the meaning and scope of the court's statute and rules allowing the prosecutor to gather evidence while promising confidentiality.
In many instances, the prosecutor's investigations of alleged crimes take place in the midst of ongoing conflict. The prosecutor may offer confidentiality to ensure the safety of individuals and organizations providing information. That confidentiality, however, may sometimes be in tension with fundamental fair trial standards, which require that the accused should have access to the evidence.
In its rulings, the Appeals Chamber re-affirmed the importance of ensuring a fair trial for the accused and made clear that the prosecutor's use of confidentiality provisions does not lessen his obligation to disclose material that may help establish the accused's innocence. But the Appeals Chamber ruled that the prosecutor's obligation to disclose is not absolute and that confidentiality agreements have to be honored at all times also by the judges.
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5. In the future, will the prosecutor be able to promise confidentiality while gathering evidence
In future cases the court will again rely on evidence gathered by the UN and other bodies. The Appeals Chamber introduced a new procedural step, by giving the ICC's judges strong oversight function. This will allow the court to resolve the potential conflict between the pledges of confidentiality and the requirements of a fair trial.
At the same time it re-affirmed the absolute nature of the obligation to respect confidentiality agreements. The Appeals Chamber thus acknowledges the difficult and challenging situations the ICC is operating in.
The prosecutor can still assure information providers that confidentiality will be respected. But judges will be able to see the information first, in order to ensure a fair trial From now on, the prosecutor will need information providers to agree that the information can be provided in full to the ICC judges.
