- Who is Thomas Lubanga?
- What charges did the International Criminal Court (ICC) prosecutor bring against Lubanga?
- Why is the trial against Lubanga not going ahead on June 23?
- Why cannot the prosecution simply turn this information over to the defense?
- Why is this information so important for the defense’s case?
- If article 54(3)(e) jeopardizes a defendant’s fair trial rights, why use it?
- So if the prosecution gets permission to give the documents to the court, then the trial can start, right?
- Does this mean that Lubanga has been acquitted?
- What does this mean for the victims of Lubanga’s alleged crimes?
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.
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.
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.”
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 that it has, even that which was collected confidentially. In the Lubanga case, the prosecution has in its possession more than 200 documents collected under article 54(3)(e) that could be considered exculpatory and that cannot be shared with either the judges or the defense. Some of the information providers—including the United Nations—have refused to disclose the confidential information that 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 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 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 that 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 to 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.
Article 54(3)(e) does not compromise the defendant’s fair trial rights if it is used in a limited way, and in fact it 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.
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.
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
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 to 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.
. 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).
. Rules 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.