Apr
09

Lubanga Aide Testifies that Lubanga Would Not Use Child Soldiers

Thomas Lubanga Dyilo’s personal secretary testified at the International Criminal Court (ICC) in The Hague, Netherlands,  this week that Lubanga would never have approved the use or recruitment of child soldiers.  The aide, Michel Angayika Baba, testified that he never saw minors in Lubanga’s bodyguard or entourage.  This is consistent with the testimony of an earlier witness for Lubanga.

Also this week the defense again complained about late disclosure of documents.  Failure to provide disclosures has been an ongoing issue in the case,  once stopping the trial, and the subject of repeated orders by the court. The prosecution offered three documents this week, which the defense argued should have been disclosed earlier.  The prosecution said one of the documents was simply a cleaner copy of an earlier document, two more “became relevant” because of the testimony of  a defense witness.  The prosecution’s determination of what is and what is not relevant and necessary to disclose had led the trial chamber to find last year that Lubanga could not get a fair trial, but that finding was reversed by the appeals chamber.

The prosecution’s position, that it must decide what material is relevant for disclosure has been troubling to some trial watchers and practitioners as well as to the trial chamber.  The prosecution takes the position that much of was it has cannot be disclosed to the defense, but only used a basis to find new evidence since the information has come through diplomatic channels and must be private.  This, of course, raises the question of whether or not the accused can be offered a fair trial if he cannot see the evidence against him or if potentially exculpatory evidence is being hidden, or ignored by the prosecution.

The question to be resolved is, do the rules provide an adequate protection of the accused?  Rule 77 says:
Inspection of material in possession or control of the Prosecutor
The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute
and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and
other tangible objects in the possession or control of the Prosecutor, which are material to
the preparation of the defence or are intended for use by the Prosecutor as evidence for the
purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or
belonged to the person.

Part of the issue comes from the hybrid nature of the court.  The court is both a civil law (European) and a common law (U.K./U.S) system. In a traditional civil law system the prosecution has a duty to fully investigate the case, including any exculpatory evidence before presenting the case to the court.  In common law systems the adversarial nature of the process, with full disclosure for the parties is presumed to better serve the interests of justice.  In a hybrid system, does the prosecutor have a greater duty to justice and full and fair investigation, or to build a case against the accused with the defense having an opportunity to present its own case?  Can the defense adequately present its case without all the files available to the prosecution?

In the end, the answers to these question, provided, in part, by the Lubanga case will determine whether or not the ICC is credible.  If the accused cannot get a fair trial, then what is the point of the court?

Lubanga is the first person to face trial in the ICC.  He is alleged to have been using child soldiers in the Democratic Republic of Congo, (DRC).  He was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.

Mar
31

Lubanga Trial Resumes, Again

The trial of Thomas Lubanga Dyilo resumed this week after a four month break to consider renewed motions to dismiss.  The defense is now presenting its case and offered testimony that Lubanga had ordered the demobilization of child soldiers.  One witness testified that Lubanga’s group, the Union of Congolese Patriots (UPC) provided security in the Ituri region of the Democratic Republic of Congo (DRC) because no one else was able to do so.   There was testimony that Lubanga ordered the demobilization of all soldiers under 18 on three different occasions.  It is not clear if these orders may help to exonerate Lubanga or indicate that he was aware of the presence of child soldiers.  The defense seems to be that child soldiers were integrated into the UPC by assimilating other groups which had conscripted child soldiers, that Lubanga then ordered the child soldiers to be demobilized and his officers did not implement those orders.

Testimony continued today with a witness testifying that there was no forced conscription of child soldiers. The defense witness, Bede Djokaba Lambi Longa testified that there were not child soldiers in the UPC.  According to Longa, some soldiers were not tall, but he did not know them to be children.  There were children in the camps, but they were not soldiers according to Longa.

Lubanga is the first person to face charges in the International Criminal Court (ICC).  He is charged with conscripting and enlisting child soldiers as a war crime.  Lubanga was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of new charges and in 2010 to consider the argument that he could not get a fair trial because of the actions of the prosecution in withholding apparently exclupatory evidence. The appeals chamber ultimately reversed that decision and the case is now resuming following a denial of another motion to suspend the case.  A timeline of the trial is available here. Disclosure by the prosecution has been a continuing issue.

Mar
08

Pre-Trial Chamber Confirms Charge in Darfur Case

Pre-Trial Chamber I of the International Criminal Court (ICC) has issued a finding confirming the charges against Abdallah Banda and Saleh Jerbo.  The court statement said the court  found that Banda and Jerbo should stand trial for three war crimes:

  • violence to life and attempted violence to life;
  • intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
  • pillaging.

The court included the following information supporting the charges:

These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.

Banda and Jerbo appeared voluntarily before the court, following the lead of Bahar Idriss Abu Garda who also appeared voluntarily, but won a dismissal at the confirmation of charges hearing.  The court has also issued indictments against the President of Sudan, Omar Al-Bashir, the Minister of Humanitarian Affairs, Ahmad Harun, and Janjaweed leader Ali Kushayab.  The situation in Darfur was the first case referred to the ICC by the United Nations Security Council.  The second, Libya, was referred last week.

To date, Sudan has refused to turn the indictees over to the court, so the only ones who have appeared are the three who have appeared voluntarily.

The seventy five page decision is available here. There are currently three cases in trial stage at the ICC, the case against Thomas Lubanga Dyilo, a joint case against Matthieu Ngdolo Chui and Germain Katanga, and the case against Jean Pierre Bemba Gombo.  Another accused, Callixte Mbarushimana has recently arrived in The Hague. In addition to the Sudan accused at large, there is one accused from the Democratic Republic of Congo still at large and three from Uganda who have not yet appeared before the court.

There may be other indictments that have not yet been made public.  Indictments in the post-election violence in Kenya case were also released today.

Mar
01

Lubanga Trial to Re-Open

The trial of Thomas Lubanga Dyilo will re-open soon.  The trial was stopped for a few months while the trial court considered a defense motion to dismiss for the prosecution’s failure to provide disclosure as required.

Part of the issue has been the appearance of two witnesses for the defense who testified that two witnesses for the prosecution had stolen their identity and falsely claimed to have been child soldiers. This led to a fight about the identity of the prosecution investigator, or intermediary in the parlance of the court, who found those witnesses and a lengthy delay while the prosecution argued it could not disclose the intermediary’s identity.  The court has since issued a number of decisions clarifying the disclosure obligations of the prosecutor and whether the delay in meeting those obligations prejudiced the defense.

Lubanga was the first defendant in ICC custody, arrested in 2007, his trial began in January 2009.  The defense began presenting their case in January, 2010.  The case was halted over the summer because the trial court ruled that Lubanga could not get a fair trial because of the disclosure issues.  A timeline of the trial, through the halt in 2010, is available here.

The appeals chamber reversed the trial court’s finding that Lubanga could not get a fair trial, finding that the trial chamber had not explored sanctions sufficiently.  The trial restarted then stalled on a motion to dismiss from the defense. A resumption date for the trial has not been announced.

Lubanga is accused of recruiting, conscripting, and using child soldier as war crimes and crimes against humanity in the Democratic Republic of Congo. The fairness of the trial is an issue raised again and again in this case.  Failure to provide a full and fair process to the defense will make the court less credible.

Dec
26

Lubanga Disclosure Still an Issue

Trial Chamber I at the International Criminal Court (ICC) in The Hague has issued another decision in the ongoing battle over disclosures by the prosecution in the trial of  Thomas Lubanga Dyilo.  Lubanga’s trial commenced in January of 2009, the defense began its case in January 2010.  Testimony was to have been completed by now, but the chamber issued another decision on December 13, 2010 on disclosure.  The prosecution sought court approval for the names and evidence it has already withheld as “work product.”  The court did order the disclosure of some names and information previously withheld from the defense.

The prosecution had argued the notes of the investigators were not discoverable as they were work product.  The court previously issued a ruling evaluating the disclosure obligations of the Office of the Prosecutor in November, shortly after a ruling that prosecutor had violated its obligations.  In July, the trial chamber stayed the proceedings finding that a “fair trial … is no longer possible.” In October  the appeals chamber found that the trial chamber had not exhausted its power to sanction the prosecution for non-disclosure.  The fact that the prosecution did not disclose information it was ordered to disclose was not in dispute, the prosecution claimed it could not disclose the information because of its obligations to the governments and organizations that had provided the information.

The prosecution had been admonished by the trial chamber for failure to comply with disclosure orders in February 2010 for disclosures that should have been made “no later than December of 2009.”  The ongoing disclosure issues in this case highlight a conflict in the concept of the court and the obligations of the parties.  The Office of the Prosecutor is a semi-diplomatic office with obligations to the U.N. and nations which have provided information.  But in order to guarantee a fair trial it must also provide access to that information to the defense. The conflict has been that even when ordered by the court to disclose information, the prosecution argues that it’s diplomatic obligations prevent it from doing so.  Can the court offer fair trials without full disclosure?  The trial chamber has argued that it cannot but was overruled by the trial chamber with an eye towards greater sanctions on the prosecution.

Lubanga is the first case go to trial at the ICC.  He was brought before the court in 2006.  He is alleged to have been the leader of the Union of Congolese Patriots and is accused of conscripting and recruiting child soldiers in violation of the Geneva Conventions and the Rome Statute, the founding treaty of the ICC.  Lubanga is a citizen of the Democratic Republic of Congo.  The ICC has jurisdiction in the 114 nations that have ratified the Rome Treaty, or over their citizens who commit war crimes, crimes against humanity or genocide as defined by international law.

If there is a conviction in this case, the court could move on to the reparations phase where the victims of war crimes or crimes against humanity could seek orders of the court to make reparations from the funds of Lubanga, or from the trust fund for victims.  The ICC is the first international tribunal to offer a process for reparations and what form those reparations orders will take is still an open question.

Nov
17

ICC Rules on Disclosure Obligation of the Prosecution

Trial Chamber I of the International Criminal Court (ICC) has issued a ruling on the obligation of the prosecution to disclose information.  Trial Chamber I has been hearing the case against Thomas Lubanga Dyilo, the first ICC case to go to trial.  The Lubanga case has been stopped several times because of disputes over the disclosure of evidence in the possession of the prosecutor.   According to a post at the Open Society blog on the Lubanga trial, the issue came to light on March 5, 2010 when the defense noted to the court that the prosecution appeared to be cross-examining a defense witness based on undisclosed information.

It is clear in the Rome Statute, that the prosecution has a duty to disclose exculpatory information.  This ruling makes it clear the obligation is broader and the prosecution must disclose not just exculpatory information but information that may help explain the case, that may be used in cross examination and that “may otherwise be material to the preparation of the defence.”

While this clarification of the obligations may seem surprising to some in the Office of the Prosecutor, it is consistent with the spirit of the rules.  The obligation is based on the American Supreme Court case of Brady v. Maryland, which requires disclosure of exculpatory material or information that may lead to exculpatory material.  This obligation is ongoing.  Essentially, that appears to be the ruling of court.

The U.S. Department of Justice was involved in the drafting of the rules of the Rome Statute in the late 1990s.  Their input was to add an American style overlay to the system and require disclosure similar to that in U.S. federal court. The Office of the Prosecutor has adopted a more narrow approach, offering to disclose information they know to be exculpatory, or specifically requested by the defense.   The court seems to have broadened that understanding to include information that  “may significantly assist the accused in understanding the incriminating and exculpatory evidence, and the issues, in the case.”

This ruling makes the possibility of acquittal by the Trial Chamber seem more likely.  In June, the Trial Chamber suspended the proceedings finding that the prosecution’s failure to disclose the identity of a witness and the ongoing failure of the prosecution to disclose information as required meant that “a fair trial of the accused is no longer possible.”

If a fair trial was not possible because of the failure to meet disclosure obligations, and the prosecution has never met those obligations in the four years that Lubanga has been in The Hague, does this new ruling compel a finding of not guilty?

Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of the Congo, he is accused of the war crimes of conscripting and enlisting child soldiers.  Lubanga was the first defendant in the custody of the court, arriving in 2006, his trial began in January 2009 and the defense began presenting its case in January 2010. The trial is expected to conclude this month.

Nov
09

Judges Again Fault Office of the Prosecutor for Late Disclosure

Presiding Judge Adrian Fulford, hearing the case against Thomas Lubanga at the International Criminal Court, (ICC) has again raised concerns about the conduct of the prosecution in failing to identify a witness. The prosecution apparently had interviewed a witness, determined the testimony was not credible, but did not disclose the information to the defense.  The prosecutor has an affirmative duty to disclose exculpatory information to the defense.

The trial has previously been suspended for several months because of the non-disclosure to the defense. In giving the prosecution until Friday November  5 to make the disclosure, Judge Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,”

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He was brought to the court in 2006. Lubanga was the leader of the Union of Congolese Patriots (UPC), and is the first person to face trial at the ICC in The Hague, Netherlands.  Lubanga is accused of the war crimes of  using and conscripting child soldiers. The trial began in January 2009, the defense began presenting its case in January 2010.  The case has been delayed several times,  and just resumed after a lengthy delay when the trial court suspended the case over concerns that Lubanga could not get a fair trial because of the repeated refusal of the Office of the Prosecutor to disclose the identity of a prosecution investigator accused of bribing witnesses.  The other delays are recounted here. The appeals chamber determined that  the case could continue, and that the court could impose sanctions on the Office of the Prosecutor to induce compliance with the court’s orders.

Testimony in the case is expected to conclude this month.  The defense is to complete its written argument requesting dismissal of the case because of prosecutorial misconduct for not properly disclosing witnesses or complying with its obligations.

Nov
04

Lubanga Trial Resumes, Expected to End This Month.

The first trial at the International Criminal Court (ICC) in The Hague, Netherlands, is expected to wrap up this month.  The trial has been beset by various delays, claims of prosecutors withholding evidence and claims that agents of the prosecution had fabricated evidence.  The Open Society Institute Blog on the trial reports that the final witnesses are expected to testify by November 25.

Thomas Lubanga Dyilo was a leader of the Union of Congolese Patriots (UPC in French) in the Democratic Republic of the Congo.  He is the first person brought to trial at the ICC.  Lubanga is standing trial for war crimes for conscripting and enlisting child soldiers in the UPC.  Lubanga was brought to the court in May of 2006, his trial began in January of 2009, the defense began presenting its case in January 2010.   A full timeline of the trial through August is available here.

Lubanga’s trial has been stopped at various times because of the unavailability of witnesses including because of the volcanic eruption in Iceland, because of an ongoing fight about the prosecution’s duty to identify a witness and its ongoing refusal to do so, and because of deficiencies in translation and transcription,

Oct
11

Fourth DRC Suspect Arrested in France

The fourth person accused of war crimes and crimes against humanity in the Democratic Republic of Congo (DRC), Callixte Mbarushimana has been arrested in France.  Mbarushima is listed as the Executive Secretary of the Democratic Forces for the Liberation of Rwanda, (FDLR) and is accused of six counts of war crimes and was arrested outside his home in Paris to fact charges at the International Criminal Court, (ICC) in The Hague, Netherlands.

The warrant naming Mbarushimana was unsealed after his arrest, raising the question  of how many other sealed indictments and warrants await public disclosure.  The ICC press release on the arrest of Mbarushimana is available here. Bloomberg news covered the story here.

According to a fact sheet released by the ICC:

 In sealed documents submitted to the ICC
judges on 20 August 2010, the Office of the
Prosecutor (OTP) presented evidence against
Mr. Callixte MBARUSHIMANA, Executive
Secretary of the FDLR, charging him with 6
counts of war crimes and 5 counts of crimes
against humanity.
 The Court’s Pre‐Trial Chamber I issued a
sealed arrest warrant on 28 September 2010.
 On 11 October 2010, the French authorities
executed the arrest warrant and arrested Mr.
Callixte MBARUSHIMANA in Paris, France.

The fact sheet describes the allegations as follows:

 Mr. Callixte MBARUSHIMANA is accused
of being among the top FDLR leaders that, at
the end of 2008 and over the course of 2009,
agreed to conduct widespread and systematic
attacks against the civilian population in order
to create a humanitarian catastrophe. He is
also accused of agreeing to conduct and
personally conducting an international
campaign intended to persuade the DRC and
Rwanda Governments and the international
community that the FDLR could not be
defeated militarily and thereby to extort from
them concessions of political power for the
FDLR in Rwanda as a condition for the FDLR
to stop committing atrocities against civilians.
 The OTP accuses Mr. Callixte
MBARUSHIMANA, as part of the FDLR
leadership, of having used violence against
civilians as their main bargaining tool in their
international campaign to attempt to extort
from Rwanda and the international
community political power for the FDLR.
 The OTP accused Mr. Callixte
MBARUSHIMANA of being responsible for
the crimes committed by the FDLR in pursuit
of this goal as contributor to the commission
of crimes by the FDLR, a group acting with a
criminal common purpose.
 As such, the OTP alleges that Mr. Callixte
MBARUSHIMANA is responsible for the war
crimes of (1) attacks against the civilian
population; (2) destruction of property; (3)
murders or willful killings; (4) rape; (5)
inhuman treatment; and (6) torture, and the
crimes against humanity of (1) murders; (2)
torture; (3) rape; (4) inhumane acts; and (5)
persecution.

Mbarushmina is the first accused at the ICC to face charges for crimes alleged to have been committed in the Kivus provinces of the DRC.  The three accused from the DRC who are presently at the ICC are in trial.

Thomas Lubanga Dyilo former head of the Union of Congolese Patriots was brought to the court in 2006, his trial began in January 2009, with the defense case beginning in January 2010.  His trial was adjourned for failure by the prosecutor to disclose the identity of an investigator, but is expected to resume shortly.

Germain Katanga and Matthieu Ngdolo Chui are also from the DRC and are being tried together.  Their trial commenced on November 24, 2009.  Katanga and Chui are accused of war crimes and crimes against humanity including, using child soldiers, sexual slavery, attacking civilians, rape and pillaging.

Those are the only cases to come to trial in the history of the ICC.  A third trial, that of Jean-Pierre Bemba Gombo, of the Central African Republic accused of rape and murder as crimes against humanity and rape, murder and pillaging as war crimes is awaiting the end of the  Lubanga trial in order to start trial.

The ICC began in 2002 when the 60th nation ratified its treaty, as of November 1, there will 114 nations that have ratified the treaty and subjected their citizens to the jurisdiction of the ICC.

Three citizens of Sudan, which is not a state’s party to the ICC have appeared before the court voluntarily to face charges.  The first, Bahr Idriss Abu-Garda had his case dismissed at the confirmation of charges hearing.  Two others, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jermus are awaiting the confirmation of charges hearing after appearing voluntarily in June of 2010.

There are outstanding warrants for the arrest of Omar Hassan Al-Bashir, the president of Sudan for genocide and war crimes, Ahmed Harun, minister of Humanitarian Affairs in Sudan and the leader of the Janjaweed Militia, Ali Kushayeb. The case against Al-Bashir is the most controversial, having raised concerns about the indictments of sitting heads of state. Al Bashir is the first sitting head of state to be indicted for war crimes or crimes against humanity by an international tribunal.

There have been public indictments issued from investigations in Uganda, and the prosecutor has announced the indictments will be published in the next few months in the investigations into post-election violence in Kenya.

The prosecutor of the ICC, Luis Moreno-Ocampo, has also said there may be investigations into crimes within the jurisdiction of the court in Afghanistan, Colombia,  Georgia, and  Guinea.  At the moment, the only publicly disclosed investigation are from five contiguous countries in Africa, DRC, Central African Republic, Kenya, Uganda and the Darfur region in Sudan.

Oct
09

ICC Appeals Chamber Rejects Lubanga Stay, Trial to Resume

The Appeals Chamber of the International Criminal Court (ICC) in The Hague, yesterday announced its decision in the case of Thomas Lubanga Dyilo.  Lubanga’s case had been stayed and he was ordered released by the trial chamber because the prosecutor claimed that it could not follow a court order to reveal the identity of a prosecution intermediary who is alleged to have bribed witness.  The prosecution claimed that it had other obligation which prevented it from revealing the identity of that intermediary despite repeated orders to do so. The appeals chamber is available here.

The appeals chamber, while not adopting the remedy of the trial chamber found the prosecution’s actions violated court orders:

It is undisputed that the Prosecutor did not fulfil the terms of the First Order of Disclosure within that order’s specified time-limit. It is equally undisputed that the Prosecutor did not fulfil the terms of the Second Order of Disclosure within its time limit. The Prosecutor failed to comply with both orders and remained in noncompliance at the time of the Impugned Decision. The Prosecutor does not contend that his non-compliance was caused by any external factor. He was aware of the
orders and voluntarily chose to pursue other actions which he considered to be justified rather than to comply with the orders. The Prosecutor’s non-compliance was deliberate. The Appeals Chamber finds that such wilful non-compliance constituted a clear refusal to implement the orders of the Chamber. To characterise such wilful noncompliance
as anything other than refusal, as the Prosecutor does in his Document in Support of the Appeal, is, at best, disingenuous. At worst, it is an expression of what the Trial Chamber correctly described as “a more profound and enduring concern”,
namely that the Prosecutor may decide whether or not to implement the Trial Chamber’s orders depending on his interpretation of his obligations under the Statute.

The Appeals Chamber concluded that the whatever duties the prosecutor may have, he has an obligation to follow the orders of the trial chamber unless and until they are overturned on appeal.  The Appeals Chamber specifically found that the Office of the Prosecutor is not a co-equal branch of the court but in fact is subject to the orders of the court:

[The Appeals Chamber] finds that the Trial Chamber did not err when it found
that the Prosecutor refused to comply with the First and Second Orders of Disclosure.
The Appeals Chamber also finds that, irrespective of whatever duties the Prosecutor
may have, he is obliged to comply with the orders of the Trial Chamber.

The Appeals Chamber, though agreeing with the problem, determined that the Trial Chamber had not actually lost control over the proceedings and the stay was thus unnecessary. The Appeals Chamber determined that sanctions under Rule 71 will be sufficient for the Trial Chamber to regain control of the prosecutor.  The decision of course implicates the other trial currently before the court, that of Matthieu Ngdolo Chui and Germain Katanga, where the same intermediary’s actions are at issue.

Lubanga is the first person to face trial at the ICC.  He is charged with recruiting and using child soldiers while leader of the Union of Congolese Patriots in the Democratic Republic of Congo. Lubanga was brought to the court in 2o06, his trial commenced in January 2009, the defense case began in January 2010.  There have been many disruptions of the case.  The Open Society blog covering the trial published a timeline of the trial, and also covered the decision of the Appeals Chamber.  The New York Times report on this decision is available here.

Categories

Recent Comments

Tags

abduction Abu Garda Afghanistan Arrest warrant Bahar Idriss Abu Garda Callixte Mbarushimana Central African Republic child soldiers complementarity counsel crimes against humanity Darfur Democratic Republic of Congo Den Haag genocidal intent Genocide Germain Katanga Government of Sudan Grenada ICC International Criminal Court ISAF Ivory Coast Jean-Pierre Bemba Kenya Libya Lubanga lubange Luis Moreno-Ocampo Matthieu Ngdolou Chui New York Times Nicholas Kristof Omar Al Bashir President of Sudan Qadafi rape reparations Rome Statute sexual slavery Sudan The Hague Thomas Lubanga Union of Congolese Patriots victims war crimes
Go back to top

Switch to our mobile site