Lubanga Trial Hangs in the Balance

Judges have called an indefinite halt to the case against a Congolese militia leader and will decide next week whether he should be released from jail.



They have accused prosecutors of abusing their power and in a June 13 decision said the trial of Thomas Lubanga “has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial”.



Lubanga – who is charged with recruiting child soldiers in the east of the Democratic Republic of Congo, DRC – was due to go on trial on June 23 after more than two years in ICC custody. The case is the ICC’s first and is being closely watched, particularly in the Congo where interest had been building in recent weeks as it appeared the long-delayed – much anticipated – trial would finally begin.



But judges last week stayed the case and lambasted prosecutors for failing to hand over key evidence to Lubanga’s defence team. The trial was originally scheduled for March 31 but delayed then over the same issue.



“If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary – indeed inevitable – that the proceedings should be stayed,” wrote the judges in their decision.



“It would be wholly wrong for a criminal court to begin, or to continue, a trial once it has become clear that the inevitable conclusion in the final judgment will be that the proceedings are vitiated because of unfairness which will not be rectified.”



This latest debacle centres on more than 200 documents given to prosecutors by the United Nations and others. Prosecutors admit that some of the documents are exculpatory – containing evidence which may justify or excuse Lubanga’s actions or show he is not guilty.



However, these documents were obtained by prosecutors under a confidentiality agreement and therefore cannot be shown to either the defence or the judges.



A provision in the Rome Statute on which the court is based allows for such agreements but only in exceptional circumstance and only if the information provided is then independently verified through the prosecutor’s own research.



“This provision is to enable prosecutors to access key information from international actors operating in … a conflict zone,” said Lorraine Smith from the International Bar Association.



She stressed that information obtained from confidential sources is not intended to support the charges but to assist prosecutors in generating new evidence.



“Because of that, there is a stipulation that the information providers can decide a restriction on use, like determining that the prosecutor will not divulge the information even to the judges,” said Smith.



Geraldine Mattioli from Human Rights Watch added, “There are often good reasons why sources want confidentiality – to protect staff, security implications, and organisations like MONUC [UN Mission in the DRC] could be attacked if they give files to the court.”



But judges say prosecutors abused the provision.



They described the prosecutors’ use of the confidentiality agreements in the Lubanga case as inappropriate and improper and pointed out that they are compelled to properly disclose evidence to the defence.



When countries deliberated the powers of the prosecutor while establishing the ICC in 1998, they decided that the office’s aim would be to find the truth, not simply condemn the defendant. That means they must pass on to defence lawyers evidence which mitigates guilt or calls it into question.



Prosecutors have openly admitted that they would have been unable to initiate an investigation in the DRC without information provided by the UN under the confidentiality agreements.



“The present problem reflects the difficult process in selecting the first investigation in the DRC. We had to have a lot of information to identify the different leaders of groups and potential criminals,” explained Beatrice Le Fraper Du Hellen from the prosecutor’s office.



With the case now in serious jeopardy, a hearing is scheduled for June 24 to discuss Lubanga’s release.



Since transfer from prison in Kinshasa in March 2006, he has been in custody in The Hague, charged with conscripting and enlisting child soldiers to fight in Ituri, a mineral-rich region in northeast DRC which has witnessed bloody inter-ethnic fighting since the late Eighties, often over access to gold, diamonds and timber.



He is the founder of the Union of Congolese Patriots, UPC, and the alleged commander of its military wing, the Patriotic Forces for the Liberation of the Congo, FPLC.



Mattioli believes the ICC’s first case can still be salvaged if prosecutors persuade the UN to allow judges to look at the confidential documents.



“This is the compromise solution offered by the judges,” said Mattioli. “The judges say, ‘we will take a look at it and we will make the determination as to whether it is exculpatory’.



“If they don’t agree to that then we have a serious problem.”



Le Fraper Du Hellen said it is now up to the judges to decide if Lubanga will ever be tried by the ICC.



“We are considering the decision and there are a lot of key issues,” she said. “We will try to solve the legal problems that are posed in the decision, and we are hopeful that a new beginning of the trial will be scheduled very soon.



“I stress that this is entirely the remit of the judges, and we have full respect for their decision. We all want trials and proceedings to be recognised as being absolutely fair and on the highest legal standards.”



When asked whether prosecutors will be changing their strategy, Le Fraper Du Helen said, “It has always been our commitment to provide information to the defence, and the issue is now to find a balance with our commitments to the information providers. We think we can find an appropriate solution.”



On the ground in Congo, an indefinite delay to Lubanga’s trial is a public relations disaster for the court.



Many Congolese are frustrated and dissatisfied, while Lubanga’s supporters are jubilant – citing the recent events as proof that Lubanga isn’t guilty. Mattioli said the ICC must take immediate action to counter any misinformation.



“We are looking to court to have a special outreach campaign to explain this decision to the people in the Congo,” she said. “This is going to create so much confusion. They have to explain what is at the core of the court – making sure the accused has all his rights preserved.”



Katy Glassborow and Lisa Clifford are IWPR reporters in The Hague.