Francis Chartrand for Rivière-des-Mille-Îles

Questions and Answers

What is the current status of the Lubanga case?

In its decision of September 3, 2008, Trial Chamber I rejected the prosecution’s application to lift the stay of proceedings in the trial of Thomas Lubanga, which the trial chamber imposed on June 13, 2008. In that earlier decision, the trial chamber unanimously decided to “stay” the proceedings against Lubanga—therefore suspending the International Criminal Court’s (ICC) first-ever trial— because the prosecution was unable to release more than 200 documents containing potentially “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.”

The information at issue 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—or to fulfill its obligation to disclose exculpatory material collected under this provision to the defense—it must get permission from the source. The sources at issue had previously refused to consent to the disclosure of the potentially exculpatory information in the prosecutor’s possession.

Does that mean Lubanga will be released?

This ruling does not mean that Lubanga will be released. On June 23, the prosecution filed an appeal of the trial chamber’s June 13 decision challenging the court’s decision to “stay” the proceedings, among other issues. Any decision relating to Lubanga’s release is tied to the appeals chamber decision. That decision is still pending.

Then why did the trial chamber issue a decision?

While any decision regarding Lubanga’s release depends on the outcome of the decision of the appeals chamber, in the meantime, the prosecution has been working to disclose the more than 200 documents containing exculpatory information in a manner that would address the trial chamber’s concerns and would “restart” the Lubanga trial. The trial chamber retained the power to “lift” the stay that it had imposed at any time, provided certain conditions were met. The trial chamber decided that the prosecutor’s proposals did not meet its conditions to restart the trial.

Why did the trial chamber reject the prosecutor’s proposals?

The trial chamber felt that there were still too many restrictions on the potentially exculpatory documents to ensure that Lubanga would receive a fair trial. The more than 200 documents at issue were provided to the Office of the Prosecutor by the United Nations (UN) and nongovernmental organizations (NGOs) and could not be disclosed without the information providers’ consent.

Of the roughly 200 documents, 152 were from the UN. Of these, the UN was imposing restrictions—in terms of the trial chamber’s review of the documents and their disclosure to the defense—on 99 of them. Of the remaining more than 50 documents from NGOs, disclosure is currently being contemplated with respect to only 3 documents. It was uncertain how many of the remaining NGO documents would be disclosed and in what form.

Why cannot the information providers simply turn over the information?

As mentioned earlier, the information at issue was collected under article 54(3)(e) of the Rome Statute, which means that if the material is to be used in any way at trial—even if it is exculpatory—the prosecution must get permission from the source. Requiring consent from the information providers helps to ensure, for example, that these sources are not unknowingly or unwillingly 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.

In its decision, the trial chamber stated that “responsibility for the continuing problems […] does not rest with the information providers, who have sought to discharge their respective mandates. As the Trial Chamber has previously observed, the United Nations and the NGOs entered into the relevant agreements in good faith, and thereafter have sought to assist the court to the extent that is consistent with their individual responsibilities.”

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Labels: Human Rights Watch, Marie-Êve Marineau

# posted by Francis Chartrand @ 2:17 AM