LUBANGA'S CASE AT ICC

ICC Suspension a Risk for Ituri Stability

UN Integrated Regional Information Networks
ANALYSIS
19 June 2008
Posted to the web 19 June 2008
Bunia

The suspension of the landmark war crimes case at the International Criminal Court (ICC) of Thomas Lubanga, who may walk free as a result, could hamper crucial efforts to end impunity in the powder keg Ituri region of the Democratic Republic of Congo (DRC), according to humanitarian and human rights officials.

If Lubanga, who is charged with forcibly recruiting children into his Ituri-based militia, were released from custody, "it would mean a failure by the international community to end the culture of impunity in Ituri," said one humanitarian official in Bunia, the main town in the northeastern region.

Lubanga's Union des patriotes congolais (UPC) was one of several armed groups involved in a 1999-2003 inter-ethnic conflict in which some 50,000 people were killed. Delivering justice to the victims of this violence is widely recognised as a prerequisite for stability in Ituri, where firearms remain common.

Lubanga's is the ICC's first ever case. He was arrested and transferred to the custody of the ICC in The Hague in March 2006. His trial was scheduled to start on 23 June, 2008 but now a hearing has been scheduled for the following day to discuss his possible release.

"If you release Lubanga, then the rest of the militia leaders who have been arrested for similar offences might have to be released; and this does not augur well for the fragile peace and calm the region currently enjoys," the official said, asking not to be identified.

Explainer

Why did the ICC Trial Chamber suspend the case against Lubanga?

"The Chamber came to the conclusion that the prosecution had incorrectly used Article 54 (3) (e) of the Rome Statute which allows the Prosecutor, exceptionally, to receive information or documents, on the condition of confidentiality, which are not for use at trial but solely for the purpose of generating new evidence. The Chamber concluded that this misuse has had the consequence that a significant body of exculpatory evidence has not been disclosed to the accused, thereby improperly inhibiting the opportunities for the accused to prepare his defence." - ICC statement

What does the prosecution have to say about this?

That it believed it acted properly in protecting the confidentiality of its sources, including UN officials working in a very tense region where their lives may be at risk; that it unsuccessfully requested that the confidentiality of some the documents be lifted; that it provided information of a similar nature, some of it potentially exonerating, to the defence in line with its disclosure obligations, but that the defence insisted on receiving the original documentation.

What happens next?

The prosecution will lodge an appeal against the stay and, with the help of the court, attempt to reconcile the rights of the defence with the need to protect its sources. The Trial Chamber will hold a hearing on 24 June to consider Lubanga's release.

"We will continue our discussions with the United Nations and other sources to try to reconcile their serious concerns related to the disclosure of this information [and] the concerns raised by the judges as to the possibility of going ahead with trial under these conditions." - Pascal Turlan, International Cooperation Advisor in the ICC's Prosecutor's Office.

What are the implications for other ICC detainees?

Two other Ituri militia leaders are in ICC detention awaiting trial. Germain Katanga, and Mathieu Ngudjolo Chui, are jointly accused of war crimes and crimes against humanity, including murder, pillage, sexual slavery, directing attacks against civilians and recruiting children. This case is not as advanced as Lubanga's and so the defence's disclosure obligations are less onerous at this stage. Still, the same problem may arise later, and if Lubanga is released, a precedent would be set to the potential advantage of these suspects.

Background on the Ituri conflict

Disclosure vs. confidentiality

On 16 June, ICC judges ordered the suspension of Lubanga's case because the prosecution declined to supply the defence with all of its documentation, some of which was exculpatory in nature. The prosecution argued that this information, some of which came from the UN, was provided on strict conditions of confidentiality and anonymity, in line with the Rome Statute that guides the court's proceedings. (See 'Explainer' below) The prosecution, which plans to appeal the judges' ruling, is adamant the decision does not spell the collapse of the case against Lubanga.

"The proceedings have not been terminated; they have been suspended pending the resolution of a technical problem," explained ICC Registrar, Silvana Arbia, who is currently in Kinshasa, DRC's capital.

"There is a real problem of protecting witnesses and victims if unexpurgated and entire statements have to be given to the defence," explained Merve Diakiese, a human rights lawyer in Kinshasa.

Given that the confidentiality problem only came to a head after two years of investigations, and just as Lubanga's trial was set to start, "many people will question the professionalism and the ability of the ICC to carry out its mandate under the Rome Statutes," he added.

ICC's spokesman in Kinshasa, Paul Madidi, said the suspension demonstrated the independence of the court's judges.

"If we recognise that the ICC prosecutor has his prerogatives, we must equally recognise that the accused also have their rights," he said.

The International Federation for Human Rights (FIDH) expressed "profound disappointment" at the suspension.

"Considering victims' strong expectations to see their cases heard at last before the International Criminal Court, we deeply hope that a judicial solution protecting both the right of the defence and the rights of victims to justice will be found, permitting the organisation of Thomas Lubanga's trial," FIDH President, Souhayr Belhassen, said in a statement released 17 June.

The view from Bunia

In Bunia itself, where some in the Hema ethnic community still see Lubanga as their champion, news of the suspension drew mixed reactions.

"The families of the children who were conscripted to fight expected a conviction," said Christian Lukusha, an official from a local human rights organisation.

"The victims [who] were there saw their property looted, their families killed [and] are waiting for justice and reparations," he added.

An official from a women's group said: "A lot of ethnic kinsfolk were calling for his conviction but were afraid of demonstrating for fear of reprisal."

"Not everyone has been disarmed in Ituri. People are afraid of the guns," she added.

According to local journalist, Gabriel Mapendo, the news from The Hague prompted celebrations in one district of Bunia.

In Mudzi Pela, where the UPC still enjoys support, "we were woken up in the night by cries of joy and patriotic songs. The Hema have got it into their heads that their leader will be back soon," he said.

For David Mugnier, Central African Project Director at the International Crisis Group (ICG), it is too soon to say whether the ICC judges' decision means Lubanga will walk free.

But if he were released, "it would be a serious blow to the credibility of the court. It would be very unfortunate to suspend a trial because of lack of cooperation between the UN and the ICC," Mugnier told IRIN in Nairobi.

And if only Lubanga, and not other Ituri war crimes suspects from rival ethnic groups, were to be spared an ICC trial, "it could be seen as a bias against other communities. Some will feel protected, others targeted, and this could lead to conspiracy theories on the ground," added Mugnier.

In a report published in May 2008, ICG warned that "inter-communal reconciliation remains superficial [in Ituri] and local courts are still unable to fight in a satisfactory manner against impunity."


Questions And Answers on Thomas Lubanga's International Court Case

Human Rights Watch (Washington, DC)

PRESS RELEASE
19 June 2008
Posted to the web 20 June 2008

International Criminal Court's Trial of Thomas Lubanga "Stayed"

Who is Thomas Lubanga?

Thomas Lubanga was the president of the Union of Congolese Patriots (UPC), a militia group purporting to further the interests of the Hema ethnic group in the Ituri region of northeastern Democratic Republic of Congo (DRC). This group has been implicated in many serious abuses including ethnic massacres, torture, and rape.

What charges did the International Criminal Court (ICC) prosecutor bring against Lubanga?

Lubanga is charged with the war crimes of enlisting and conscripting children under the age of 15 years as soldiers and using them to actively participate in hostilities in 2002-2003. He was arrested in the Congo on those charges and brought into ICC custody in March 2006. In January 2007, Pre-Trial Chamber I confirmed the charges against him based on its determination that there was sufficient evidence against Lubanga to go forward with a trial. After several delays, the trial was supposed to begin on June 23.

Why isn't the trial against Lubanga going ahead on June 23?

The judges of the Trial Chamber unanimously decided to "stay" the proceedings against Lubanga-meaning that in all respects, the trial has been halted-because the prosecution has been unable to release more than 200 documents containing "exculpatory" information that it gathered during its investigation. The court defines "exculpatory" material as documentation that shows or tends to show the innocence of the accused, that mitigates the guilt of the accused, or information which may affect the credibility of the prosecution evidence. According to the judges, "the right to a fair trial-which is without doubt a fundamental right-includes an entitlement to disclosure of exculpatory material."

Why can't the prosecution simply turn this information over to the defense?

This information was collected under article 54(3)(e) of the Rome Statute. Under this provision, the prosecution can agree to receive documents or information on a confidential basis "solely for the purpose of generating new evidence." This confidential information is supposed to be a "springboard" for the prosecution to collect new evidence in its investigations that can be used at trial. If the prosecution wants to use any of this information at trial, it must get permission from the source.

As stated above, the prosecution has an obligation to disclose all exculpatory information it collects, even if is collected confidentially. In the Lubanga case, the prosecution has collected more than 200 documents under article 54(3)(e) that could be considered exculpatory. Some of the information providers-including the United Nations-have refused to disclose the confidential information they provided to the judges and the defense.

More generally, in its decision, the Trial Chamber criticized the prosecution's "excessive use" of article 54(3)(e) in collecting information in its investigations. The prosecution has also used this provision to collect information that incriminates Lubanga-meaning it may show his guilt-which it wants to use in the trial. Again, to do so, it needs permission from the information providers, many of whom have refused.

Requiring consent from the providers to use the information at trial helps to ensure, for example, that these sources are not unknowingly or unwilling exposed to safety risks because of their cooperation with the ICC. This is particularly relevant for sources that operate in countries where the ICC is carrying out investigations.

Why is this information so important for the defense's case?

In building its case, the defense is supposed to conduct its own investigations and if a defendant is indigent, the court's legal aid system includes a budget so his defense team has the means to do so. At the same time, however, the prosecutor has an obligation to collect exculpatory information in its investigations and provide this information to the defense under the Rome Statute.1 The prosecution has been given considerable resources (in comparison with the defense) to fulfill these important obligations.

If article 54(3)(e) jeopardizes a defendant's fair trial rights, why use it?

Article 54(3)(e) does not compromise the defendant's fair trial rights if it is used in a limited way, and in fact can be an important source of information for the ICC. Even though the "springboard" information obtained under article 54(3)(e) cannot automatically be used at trial, it can give the prosecution valuable leads to start its investigations. This assistance is especially important since the prosecution must often conduct its investigations under difficult circumstances of ongoing conflict or instability.

So if the prosecution gets permission to give the documents to the court, then the trial can start, right?

Not necessarily. The Trial Chamber identified a number of issues that must be resolved before the trial can take place. For instance, the defense has sought orders from the Trial Chamber on a number of issues, including the immediate disclosure of additional potentially incriminatory material that the prosecution would have collected against Lubanga. In addition, the Appeals Chamber has not yet made a decision on the modalities of victims' participation in the trial. It is unclear how long it will take to resolve these and other matters even if the issue of exculpatory material is adequately addressed.

Does this mean that Lubanga has been acquitted?

Lubanga cannot be acquitted without a trial. The judges have announced that they will hold a hearing on June 24 to decide whether to release Lubanga from custody now that the proceedings have been halted. In the meantime, under the Rome Statute, within five days of being notified of the decision, either the prosecution or the defense can submit an appeal in writing.2

What does this mean for the victims of Lubanga's alleged crimes?

The Trial Chamber's decision has caused significant confusion and disappointment among affected communities in the Ituri district of northeastern Congo, who were anxiously expecting the beginning of Lubanga's trial. It is absolutely essential that the court launch a targeted outreach campaign as soon as possible to explain this latest development and answer questions about its implications.

Obviously, if the trial does not go ahead, the victims of Lubanga's alleged crimes will be denied the opportunity of seeing him brought to justice. This includes victims who were accepted to participate in the proceedings and victims seeking reparations against him. At the same time, however, Thomas Lubanga's right to a fair trial cannot be compromised. Indeed, justice is meaningless if it is not dispensed fairly.

1 Rome Statute of the International Criminal Court (Rome Statute), UN Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002. See articles 54(1)(a) and 67(2).

2Rules of Procedure and Evidence, International Criminal Court, ICC-ASP/1/3, http://www.icc-cpi.int/library/about/officialjournal/Rules_of_procedure_and_Evidence_English.pdf (accessed June 19, 2008), rule 82(1)(d) and rule 155.