Apr
21

Lubanga Trial Closes Evidence Phase

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has declared a closed the evidentiary phase of the trial of Thomas Lubanga Dyilo. The court had previously announced the schedule for closing arguments, previously discussed here, which Judge Adrian Fulford announced will not be changed. “The clock has started ticking and nothing save an earthquake will stop it,” The Lubangatrial.org blog reports him as saying.

Thomas Lubanga Dyilo is the first person to face the International Criminal Court. He is accused of the war crimes of recruiting, using and conscripting child soldiers.  He was brought to the court in 2006, and his trial began in January of 2009.  The defense began presenting it’s case in January 2010.  The case stopped several times because of the prosecution cross examining witnesses with information that had not been disclosed to the defense.  At one point, the trial chamber issued a stay, finding that Lubanga could not get a fair trial, the appeals chamber reversed, but disclosure of evidence has continued to be an issue. The trial chamber again recently ruled on the disclosure problems and denied another defense request to end the trial because of the disclosure issues.

The questions raised by the ongoing disclosure issues were discussed in part, here.  Ultimately, the attitude and actions of the prosecutor in timely and properly disclosing evidence will determine whether or not an accused may get a fair trial at the court.  That, and the court’s reaction to the prosecution’s failure to comply with rules and court orders will determine the credibility of the court.  The court has been much in the news lately, which has added to American awareness of its existence.  It’s continued existence will require credibility in fair trials for the accused followed fair treatment of the victims in the reparations process when there is a conviction.

 

Apr
13

Lubanga Closing Scheduled

Although testimony is still being taken, Trial Chamber I of the International Criminal Court (ICC) has set out a timetable for the closing arguments in the trial of Thomas Lubanga Dyilo.  The order states that the prosecution and the victims should go first and must make their submissions by June 1, 2011. Although it is common to have simultaneous submissions, the court ordered the prosecution to submit its argument first:

In light of the legal and factual developments since the commencement of the trial, which led, inter alia, to the most recent defence application for a stay of the proceedings based on an abuse of the process by the prosecution, the Chamber is of the view that it is necessary for the Prosecutor to file his written closing statement first. The accused is entitled to know, once the evidence has closed, the legal and factual basis on which the Prosecutor maintains he is guilty. In this particular case, the lack of clearly identified bases could, potentially, result in the defence responding to evidence that is no longer relied on. In the circumstances, the logic underlying Rule 141(2) of the Rules that  establishes the right of the defence to examine witnesses last also applies to these final written submissions. The defence is therefore entitled to file
its closing submissions once the arguments of the prosecution and the legal representatives have been submitted.

The prosecution’s closing argument is to be no more than 250 pages long and the victim’s submissions to be no more than 50 pages long for each team.  The defense has until July 15, 2011 to file a response of up to 300 pages.  The prosecution than can file a response on August 1, the defense has until August 15 to file a rebuttal to the prosecutor argument.  On August 25 and 26 the court will hear oral arguments about the case from the prosecution and defense as well as the victim’s legal teams and the Office of Public Counsel for Victims.

The chamber directed the parties to address the following issues in their closings:

i) Whether there was an armed conflict in Ituri, Democratic Republic of
Congo, between 1 September 2002 and 13 August 2003?
ii) If there was an armed conflict for the purposes of i) above, is there a
nexus between the armed conflict and the alleged crimes?
iii) Was the armed conflict of an international character or not of an
international character, for the purposes of Article 8 of the Statute?

iv) If the Chamber concludes that it was not of an international character,
what factors should be taken into account if the Chamber considers
modifying the legal characterisation of the facts (under Regulation 55)
for the period of early September 2002 to 2 June 2003?
v) What does the prosecution need to establish in this case under Article
25(3)(a) of the Statute?
vi) What is the meaning of the terms “conscripting” or “enlisting”
children under the age of fifteen years into the national armed forces,
into armed forces or armed groups or “using them to actively
participate in hostilities”, for the purposes of Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) and the corresponding Elements of the Crimes?
vii) What does the prosecution need to establish under Article 30 of the
Statute, bearing in mind Article 8(2)(b)(xxvi)(3) and Article
8(2)(e)(vii)(3) of the Elements of Crimes?

Apparent in the order is the concern that the court has not resolved for itself whether the discovery violations which were complained about recently, stopped the trial last summer, and have been at issue a number of times in the case, have deprived Lubanga of a fair trial.

Lubanga is the first person to face trial in the ICC.  He was brought to The Hague in 2006, his trial began in January 2009, the defense case began in January 2010.  He is accused of war crimes including conscripting and using child soldiers as leader of the Union of Congolese Patriots in the Democratic Republic of Congo.

At the ICC, victims are allowed to participate to a limited extent in the trial, including motions and commenting on evidence.  The victims may also seek an order for reparations from the court if there is a conviction.

Mar
31

Lubanga Trial Chamber Issues Written Order Denying Stay

Trial Chamber I of the International Criminal Court (ICC) issued an order denying a defense request for a stay of the proceedings of the trial of Thomas Lubanga Dyilo on March 7, 2011. The court has ordered the trial to resume, which it since has, as described here.

The order describes a number of instances where the prosecution used intermediaries whose reliability it had reason to doubt, but did not pass the information that the were credibility concerns on to the court or the defense.  The court summarized some of the concerns in this paragraph:

By way of summary, therefore, it is argued that although from a range of
materials Intermediary 316 was clearly to be suspected of providing false
information or eliciting false evidence, the Office of the Prosecutor chose to
continue working with him until at least April 2008, avoiding investigating
the reliability of the material he provided or alerting the Chamber to the
potential difficulties.

Intermediary 316 allegedly convinced at least one witness, witness 16 to falsely claim that he served as a child soldier in Lubanga’s army. Further, Intermediary 316 falsely claimed that his assistant had been murdered and the murderers were out to get him.  When it was found that the assistant was not dead, and other parts of his story of death threats could not be verified, the prosecution continued to use the services of Intermediary 316.  Reports indicated that there were concerns in the Office of the prosecutor about the reliability of his information, but this was not disclosed to the defense or the court, and the OTP continued to use his information.

In addition, the defence alleges that the prosecution was aware that Intermediary 316 was passing false information to the prosecution. It is suggested that internal reports that reached the highest level of the Office of the Prosecutor revealed that Intermediary 316 had lied to the investigators regarding the situation of three potential former FNI child soldiers. The
investigators noted that one of the child soldiers introduced by Intermediary 316 appeared to have been coached. It is said that this was left uninvestigated.322 Moreover, two emails sent by Witness 583 to his superiors in May 2006 set out the doubts that were expressed about expenditure allegedly incurred by Intermediary 316. In an investigator’s note dated 18
June 2010 it is suggested that Intermediary 316 had little credibility as regards events that occurred between 2006 and 2009. When Intermediary 316 was questioned by the Office of the Prosecutor in May 2008, he admitted to having lied, and having persuaded someone else to lie, to the investigators in order to obtain money to meet a personal debt. In October
2008, Intermediary 316 informed the prosecution that his assistant (Witness 183) had been murdered and that his killers were seeking him. He repeated this claim when he was questioned on this again in October 2009 and in November 2010. However, the Prosecutor accepts that Witness 183 is alive. Finally, in May 2008 the Office of the Prosecutor decided not to refer Intermediary 316 to the VWU because the threats he had alleged had not been established, and his family had provided varying accounts of the same events.

The chamber noted similar concerns about the work of another intermediary:

Intermediary 321 encouraged young
boys from [REDACTED] to make false claims to investigators from the
Office of the Prosecutor that they had been enlisted by the armed wing of
the UPC (including Witness 213, Witness 294, Witness 297 and Witness 298,
who each gave evidence). Defence Witness 4 maintained that
Intermediary 321 asked him and others to give a false story to the
prosecution that he had been enlisted in the UPC, and he was promised
assistance, training and money. He said the lies included their names, where
they lived and their ages. He gave evidence that he was coached in his false
account by Intermediary 321, over a number of days.

The defense also raised concerns about the evidence gathered by Intermediary 31:

Intermediary 31 acted as the intermediary for a number of witnesses, and it
is said that he was employed in that general role between 2005 and (at least)
2008. The defence submits that there is reason to suggest that he encouraged
potential witnesses to provide false evidence. The defence refers to events in
February 2006 when concerns were raised as to his credibility and dealings
with him were suspended (it is said the executive committee of the Office of
the Prosecutor was alerted to this turn of events). The defence relies on
evidence concerning his remuneration. Overall, the defence argues that his
employment with the prosecution should have been terminated and any
evidence gathered by him required thorough investigation; instead, it is
averred his services continued to be used and he was called to give
evidence.

The court found that despite repeated violations of disclosure obligation and the possible fabrications of evidence by the intermediaries:

The Chamber is of the view that this is not a situation in which alleged prosecutorial misconduct has disabled the accused from properly defending himself. The Chamber has responded comprehensively to the defence submissions so as to ensure that the totality of the available evidence on the relevant intermediaries is explored during the trial. Four intermediaries have been called to give evidence; the investigators who were principally responsible for each of them have testified; and the prosecution has indicated that it has effected disclosure of all relevant materials, following various rulings by the Chamber. Reverting, therefore, to the question posed by the Chamber in paragraph 166 above, the Chamber is unpersuaded, in these circumstances, that “the accused’s rights have been breached to the extent that a fair trial has been rendered impossible”.

The court found that it is not odius or repugnant to justice to continue the trial of Lubanga under the circumstances, as the court can choose to overlook the unreliable evidence in reaching its determination:

Contrary to the submission of the defence, the Chamber will be able, in
due course, to reach final conclusions on the alleged impact of the
involvement of the intermediaries on the evidence in this case, as well as on
the wider alleged prosecutorial misconduct or negligence based on the
suggested failure by the Office of the Prosecutor to supervise or control the
individual intermediaries and to act on indications of unreliability (together
with the consequences of any adverse findings in this regard, which the
defence alleges taints all the prosecution’s evidence).

The court continued, later in the 92 page opinion:

Even taking the accused’s submissions at their highest, the suggested failure
to check and investigate the statements of the prosecution’s witnesses, and
any other relevant evidence in the Prosecutor’s possession, or to reveal the
alleged weaknesses in the accounts of Intermediary 316 and Witness 157,
cannot properly be characterised as “illegal conduct” of a kind that would
make it “repugnant” or “odious” to continue the trial of the accused.
Similarly, the suggested breaches of the accused’s rights under Article
54(l)(a) and (b) of the Statute would not constitute such a serious violation
of the statutory safeguards as to make his trial ipso facto unfair. The
Chamber is persuaded that it will be jable, at the end of the case, to review in
detail the instances in which it is suggested the prosecution failed in its duty
to ensure that it was submitting reliable evidence. If the Chamber concludes
that this occurred in any of the instances relied on by the defence, the
appropriate remedy will lie in the Court’s approach to the evidence in
question, and particularly the extent to which it is to be relied on. A failure
to ensure that the Chamber has received reliable evidence, especially when
the prosecution was on notice that significant doubts existed in relation to
material in question, may affect the Chamber’s conclusions on the relevant
area or issue. On the facts advanced by the defence on this issue, the
suggested failings on the part of the prosecution – including the suggestion
that on occasion the Prosecutor deliberately avoided the process of
verification – are not so egregious as to necessitate the termination of the
trial.

The trial has, since the issuance of this order, resumed. It is not clear how much longer the trial might last at this point. Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of Congo (DRC) and is alleged to have used child soldiers in his army.  Lubanga is the first person to face war crimes charges in the ICC.  His trial began in January 2009, and he has been in The Hague since 2006.

 

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.

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.

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.

Oct
01

International Criminal Court Rejects Prosecution’s Offer of Compromise in Lubanga Trial

The trial chamber in the Thomas Lubanga Dyilo case last week rejected the prosecutor’s offer to identify the contested intermediary and provisional resume testimony in the Lubanga case. The Lubanga trial was suspended in July over the prosecution’s failure to disclose the identity of a prosecution investigator who is alleged to have bribed witnesses to falsify testimony.  Among other claims, the investigator is alleged to have found witnesses to assume the identities of other people and falsely claim to have been child soldiers in Lubanga’s Union of Congolese Patriots (UPC). One defense witness testified that he was paid to claim to be a child soldier in the UPC when he was never in the armed forces.

The Office of the Prosecutor has been repeatedly admonished for late disclosures in the Lubanga case.  This eventually led to the showdown in which the court indefinitely suspended the proceedings declaring that Lubanga could not get a fair trial and ordered his release from custody. The prosecutor has appealed and made a motion to provisionally continue the trial pending resolution of the appeal.

The trial chamber has now rejected that offer, finding that:

[I]t is necessary to repeat and emphasise that justice can no longer be done in this case whilst the Prosecutor continues to reserve to himself the right not to implement the Chamber’s orders if he is of the view that they conflict with his interpretation of his other obligations: as a result, the judges will have lost control of a significant aspect of the trial proceedings. Indeed, the Chamber may not even be aware of instances when its Decisions are not being implemented if this approach is permitted. This serious infringement of the Rule of Law applies  equally to proceedings in which “provisional” evidence is received as it does to a resumed trial. The guarantees of a fair hearing would be absent in both situations. By Article 64 (2) of the Statute, the Chamber is enjoined to ensure that the trial of the accused is conducted with full respect for his rights. The Chamber is unable to discharge this obligation whilst the Prosecutor refuses to accept the authority of the Court. Compliance with judicial orders lies at the heart of the principle of the rule of law – it is an irremovable and fundamental ingredient of a fair criminal trial, absent which the proceedings are ipso facto
vitiated.

The court will not resume the trial it said, unless and until the prosecution accepts the authority of the court to direct the prosecution and that the prosecution must follow the court’s orders regardless of other claimed obligations.  The Open Society Institute blog detailed the decision here.  The court’s order is available here.

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He is charged with using child soldiers in his role as leader of the UPC in the Democratic Republic of Congo.  Lubanga was brought to the court in 2006, the trial started in January 2009, the defense began presenting its case in January 2010.  The case has been suspended since July, based on the described finding of the trial chamber that Lubanga can no longer be guaranteed a fair trial because of the prosecutor’s refusal to follow court orders.

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