The Hague — The future of the ICC´s first trial is hanging by a thread. Four judges at the Appeals Chamber will decide the fate of one man, the Congolese warlord Thomas Lubanga Diylo, and whether to continue a case that seeks to deliver justice for the victims of heinous crimes committed in the Ituri region between 2002 and 2003.
These victims are largely children, turned into soldiers in the war that the Hema militia, the Union of Patriotic Congolese, led by Mr. Lubanga, waged against its Lendu enemy. After the Chamber hearing the case ordered the "unconditional" stay of proceedings and the Accused´s release, it is now the responsibility of the Appeals judges to avoid a startling end to this landmark trial. Mr. Lubanga is in detention pending the outcome of the Prosecution´s appeal.
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After more than four years in preventive custody and eighteen months of proceedings, on 15 July 2010 Trial Chamber I, with Judge Adrian Fulford presiding, stopped the case as an abuse of process of the Court and ordered the release of the Accused. "Given the Chamber has imposed an unconditional stay of proceedings, and bearing in mind the wholesale uncertainty of whether this case will start at some future time, together with the length of time that [the] Accused has been in custody, anything other than unrestricted release would be unfair," said Judge Fulford. "The Accused, therefore, shall be released unconditionally."
The judges reached this conclusion after they halted the trial on 8 July 2010 due to the non-implementation of the Chamber´s orders by the Prosecution. "The Prosecutor has elected to act unilaterally [...] and he declines to be checked by the Chamber [...] The fair trial of the Accused is no longer possible and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings," said Judge Fulford. The Chamber had ordered the Prosecution to confidentially disclose to the Defence the identity of Intermediary 143, an individual who had helped prosecutors to find potential witnesses.
On 14 July 2010, the Prosecutor sought to appeal the decision on staying proceedings, and submitted that the Chamber´s conclusion was a punitive sanction against the Prosecution, as it was "excessive and disproportionate." "The Chamber had at its disposal a range of alternative remedies that would not affect in such a drastic and final way the continuation of trial proceedings, a measure that impacts on the rights not only of the Prosecution but also of victims and of the communities where the crimes occurred," reads the appeal. The Prosecutor also referred to article 71 of the Rome Statute, which regulates the consequences of non-compliance with an order from the Court. "In fact, the Chamber resorted to these provisions issuing a formal warning to the Prosecutor and the Deputy Prosecutor for refusing to comply with the directions of the Court."
In addition, the Prosecution contests the Chamber´s reasons to halt the case and asserts that the responsibility to protect individuals who may be at risk is part of the Prosecutors' work. "The Prosecution did not refuse to comply with any order from the Chamber; rather [...it] resorted to available legal avenues in order to prevent harm to a person at risk due to his interaction with the Court. What the Prosecution did was not set itself above the Chamber with respect to protection decisions, but rather to implement its statutory duty of protection."
Amongst those legal venues, the Prosecution says it requested time to disclose the identity of Intermediary 143, pending consultations with the Victims and Witness Unit. It also sought the implementation of interim measures in order to offer sufficient safeguards for this individual. But "the Prosecution's objections were dismissed out of hand, with no explanation other than the Chamber was sure the Accused and the Defence team would respect the confidentiality of this highly sensitive identity information," reads the appeal. "In short, the Chamber denied the Prosecution the opportunity to establish that disclosure without any protective measures would violate the Court´s unitary responsibility to persons at risk."
On 16 July 2010, the Prosecutor filed a second appeal requesting the Appeals Chamber to overturn the decision to release Thomas Lubanga and order his continued detention.
The Prosecutor alleges that the Appeals Chamber has previously recognised, in similar circumstances, that releasing an Accused pending appeal against the release decision could defeat the purpose of the appeal. "Where the release of the Accused has been ordered, suspensive effect is required in order to avoid pre-empting the subject of the appeal and rendering its outcome moot."
Additionally, the Prosecution argues that releasing Thomas Lubanga in the present situation, pending the outcome of this appeal, would have "adverse and possibly dire consequences" on the trial proceedings, particularly on witnesses and the elicitation of evidence.
In the appeal, it is also argued that Lubanga´s detention is necessary to ensure his appearance at trial, as the possibility of flight is "undisputed and undiminished" and exists a real possibility that the Court will not be able to regain custody of the Accused if he is released.
Intermediary 143, the trigger
As described by the Office of the Prosecutor, in order to conduct investigations during ongoing conflicts in a confidential manner, the Prosecution relies on intermediaries to facilitate contact with some of its trial witnesses. "Intermediary 143 is a professional person who assisted the Prosecution by liaising with some of the witnesses and with other persons who did not testify for the Prosecution, but whose evidence was disclosed to the Defence," explains the team.
After Lubanga's lawyers claimed that Prosecution witnesses lied at trial and that the intermediaries assisted in the fabrication of their false testimony, the judges called two intermediaries to testify and to disclose the name of a third one, intermediary 143. Although no allegations had been made against this individual, his testimony was relevant because some Defence witnesses contradicted aspects of testimony of Prosecution witnesses whose cooperation he had facilitated. The Chamber decided then that the disclosure of his identity would not occur before the necessary protective measures were implemented.
However, the implementation was taking longer than expected. Intermediary 143 had declined the protective measures and had made additional demands. Thus the disclosure of his identity had to wait for at least two weeks. The Chamber found that this was a "substantial" delay that affected the questioning by the Defence of witness 321, another intermediary currently testifying, and particularly stressed the significant delays the trial had experienced so far. The Chamber then changed its first decision and ordered the Prosecution to immediately disclose the intermediary´s identity "under strict embargo" to the Defence. In the judges' opinion, the dissemination of the restricted information to the members of the Defence team and its resource person in DRC would result in "no deterioration in the security position of intermediary 143."
The limited disclosure was never accepted by the Prosecution, who sought to appeal the decision, reiterating that the restricted disclosure still posed a risk to 143´s security. The Office of the Prosecutor particularly had its reservations concerning the Defence's resource person, allegedly one of the top members of Lubanga´s militia. In addition, prosecutors argued that some Defence witnesses had made allegations that the Defence's resource person attempted to corrupt evidence. The Prosecution´s concerns were disregarded by the Chamber, who insisted in disclosing the confidential information.
The team then reiterated that it had an independent statutory obligation to protect persons put at risk on account of their interaction with the Prosecution, and informed the Chamber that it would accept adverse consequences in its litigation rather that leave a person unprotected. The Chamber interpreted the Prosecution´s actions as an "unequivocal refusal to implement [its] repeated orders." "In these overall circumstances, it is necessary to stay the proceedings as an abuse of process of the Court because of non-compliance with the Chamber´s order and because of the Prosecutor´s clearly evinced intention not to implement the Chamber´s order [...] if he considers they conflict with his interpretation of the Prosecution´s other obligations," concluded Judge Fulford. The Chamber also issued a warning of misconduct to the Chief Prosecutor, Luis Moreno Ocampo, and his Deputy, Fatou Bensouda.
Second halt
This is the second occasion on which the Chamber stayed the proceedings and ordered the release of Thomas Lubanga. On 2 July 2008, before the trial began, the judges decided that a fair trial was no longer possible given that the Prosecutor had not disclosed potentially exculpatory evidence to the Defence, covered by certain confidentiality agreements with its sources.
Some international criminal law analysts conclude that the latest developments are a sign of the independence of the Court. "The Trial Chamber's decision does send a deeply important message about the ICC: if the process is not fundamentally fair, then the accused must be released," says Tracy Gurd, legal officer for the International Justice Program of the Open Society Justice Initiative. "It demonstrates that the ICC is serious about its mission to provide a fair hearing to those who come before it. It is genuinely struggling as an institution to find the right balance of responsibilities between the judges and prosecutors while also taking on board concerns about the safety of victims, witnesses, and others who could be harmed on account of the Court's work."
Opposed to Ms. Gurd´s opinion is Lorrain Smith, the ICC Program Manager at the International Bar Association, who stressed the negative effect of the excessive length of the trial on the Court´s reputation. "If we keep having delays, it makes it very difficult to promote the ICC. It casts a shadow on people's perception of the [Court]", says Smith.
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