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DRC, Part II: Media coverage of Stay of Lubanga trial

20 June 2008

Dear all,

Please find the second of a two-part message about the stay of trial proceedings in the Thomas Lubanga Dyilo case.

This message contains news and analysis regarding the halting of the Lubanga trial.

Please take note of the Coalition's policy on situations before the ICC (below),
which explicitly states that the CICC will not take a position on potential and
current situations before the Court or situations under analysis. The Coalition,
however, will continue to provide the most up-to-date information about the ICC.

Best regards,

Sasha Tenenbaum
CICC Communications
[email protected]

***********

I. MEDIA COVERAGE

i. "Lubanga Trial Hangs in the Balance", By Katy Glassborow and Lisa Clifford
(IWPR), 17 June 2008, http://www.iwpr.net/?p=acr&s=f&o=345238&apc_state=henpacr

"ICC judges will decide shortly whether troubled case against the DRC warlord should
continue. Judges have called an indefinite halt to the case against a Congolese
militia leader and will decide next week whether he should be released from jail.

They have accused prosecutors of abusing their power and in a June 13 decision said
the trial of Thomas Lubanga 'has been ruptured to such a degree that it is now
impossible to piece together the constituent elements of a fair trial'.

Lubanga - who is charged with recruiting child soldiers in the east of the
Democratic Republic of Congo, DRC - was due to go on trial on June 23 after more
than two years in ICC custody. The case is the ICC's first and is being closely
watched, particularly in the Congo where interest had been building in recent weeks
as it appeared the long-delayed - much anticipated - trial would finally begin.

But judges last week stayed the case and lambasted prosecutors for failing to hand
over key evidence to Lubanga's defence team. The trial was originally scheduled for
March 31 but delayed then over the same issue.

'If, at the outset, it is clear that the essential preconditions of a fair trial are
missing and there is no sufficient indication that this will be resolved during the
trial process, it is necessary - indeed inevitable - that the proceedings should be
stayed,' wrote the judges in their decision.

'It would be wholly wrong for a criminal court to begin, or to continue, a trial
once it has become clear that the inevitable conclusion in the final judgment will
be that the proceedings are vitiated because of unfairness which will not be
rectified.'

This latest debacle centres on more than 200 documents given to prosecutors by the
United Nations and others. Prosecutors admit that some of the documents are
exculpatory - containing evidence which may justify or excuse Lubanga's actions or
show he is not guilty.

However, these documents were obtained by prosecutors under a confidentiality
agreement and therefore cannot be shown to either the defence or the judges.

A provision in the Rome Statute on which the court is based allows for such
agreements but only in exceptional circumstance and only if the information provided
is then independently verified through the prosecutor's own research.

'This provision is to enable prosecutors to access key information from
international actors operating in ... a conflict zone,' said Lorraine Smith from the
International Bar Association.

She stressed that information obtained from confidential sources is not intended to
support the charges but to assist prosecutors in generating new evidence...

Geraldine Mattioli from Human Rights Watch added, 'here are often good reasons why
sources want confidentiality - to protect staff, security implications, and
organisations like MONUC [UN Mission in the DRC] could be attacked if they give
files to the court.'

But judges say prosecutors abused the provision.

They described the prosecutors' use of the confidentiality agreements in the Lubanga
case as inappropriate and improper and pointed out that they are compelled to
properly disclose evidence to the defence.

...Prosecutors have openly admitted that they would have been unable to initiate an
investigation in the DRC without information provided by the UN under the
confidentiality agreements.

'The present problem reflects the difficult process in selecting the first
investigation in the DRC. We had to have a lot of information to identify the
different leaders of groups and potential criminals,' explained Beatrice Le Fraper
Du Hellen from the prosecutor's office.

With the case now in serious jeopardy, a hearing is scheduled for June 24 to discuss
Lubanga's release.

...Mattioli believes the ICC's first case can still be salvaged if prosecutors
persuade the UN to allow judges to look at the confidential documents. 'This is the
compromise solution offered by the judges,' said Mattioli. 'The judges say, 'we will
take a look at it and we will make the determination as to whether it is
exculpatory'. 'If they don't agree to that then we have a serious problem.'

...When asked whether prosecutors will be changing their strategy, Le Fraper Du
Helen said, 'It has always been our commitment to provide information to the
defence, and the issue is now to find a balance with our commitments to the
information providers. We think we can find an appropriate solution.'

On the ground in Congo, an indefinite delay to Lubanga's trial is a public relations
disaster for the court. Many Congolese are frustrated and dissatisfied, while
Lubanga's supporters are jubilant - citing the recent events as proof that Lubanga
isn't guilty. Mattioli said the ICC must take immediate action to counter any
misinformation.

'We are looking to court to have a special outreach campaign to explain this
decision to the people in the Congo,' she said. 'This is going to create so much
confusion. They have to explain what is at the core of the court - making sure the
accused has all his rights preserved.'

ii. "International Criminal Court Says It May Discard First Case," by Marlise Simons
(The New York Times), 17 June 2008,
http://www.nytimes.com/2008/06/17/world/europe/17hague.html?scp=2&sq=international+criminal+court&styt

"Judges at the International Criminal Court in The Hague warned Monday that they
might throw out their very first case because of doubts that a fair trial was
possible. The long-awaited trial was to begin next week.

...On Friday, after a tense hearing, the judges ordered the proceedings stopped. In
a 44-page ruling released Monday, the judges said that the prosecution had withheld
'significant' exculpatory evidence from the defense....

The judges reprimanded prosecutors for 'misuse' of the material, saying they had
planned to use 'confidential' information in the trial, and that such information
should have been disclosed to Mr. Lubanga and his lawyers, as well as the court. The
judges said the United Nations had rejected requests for the court to review the
documents."

iii. "Global court may release first suspect," by Niclas Mika (Reuters), 16 June
2008, http://www.reuters.com/article/worldNews/idUSL1621037020080616

"The International Criminal Court might have to free its first suspect because
abuses of procedure by prosecutors could make a fair trial impossible, the court
said on Monday. The trial of Congolese militia leader Thomas Lubanga had been due to
start on June 23, a historic step for the world's first permanent war crimes court
in The Hague. But it was halted by the court....

...It scheduled a hearing for June 24 to consider Lubanga's release.

...ICC prosecutor Luis Moreno-Ocampo said he was confident Lubanga would still face
trial. Asked on the sidelines of a European Union meeting in Luxembourg whether the
people of Congo should be worried, he told Reuters: 'They will receive justice.
Lubanga will be on trial.'

Geraldine Mattioli, advocacy director at Human Rights Watch, said: 'My impression is
that the only thing that would salvage it is for the U.N. and other sources to let
the judges see the potentially exculpatory information.'

The judges could then decide whether the information needed to be turned over to the
defense or the relevant charges dropped if that was not possible, allowing the trial
to proceed.

'This is the only way that we will have justice, if the rights of the accused are
scrupulously respected,' she said.

Last month, the court netted its biggest fish when Belgian authorities executed an
ICC arrest warrant for Congo's exiled former Vice-President Jean-Pierre Bemba, a
former warlord...."

iv. "At UN, Changes to Council's Sudan Statement, French Words for Chad But Not
Lubanga", by Matthew Russell Lee (Inner City Press), 16 June 2008,
ttp://www.innercitypress.com/unsc4postafrica061608.html

"... The International Criminal Court, which received support from the Council's
Presidential Statement on Monday, is also in disarray, as the case against Congolese
rebel Thomas Lubanga for, among other things, recruiting child soldiers has fallen
apart. Prosecutor Luis Moreno Ocampo failure to turn over discovery and potentially
exculpatory material to Lubanga and his lawyers; the case has been suspended and on
June 24 Lubanga may be released. Inner City Press asked Costa Rica Ambassador Jorge
Urbina, given his country's interest in the ICC, to comment, but he said he had only
come to the stakeout to speak about the Presidential Statement.

Inner City Press asked Ambassador Ripert of France to comment on the freezing and
prospective dropping of the child soldier recruitment charges against Lubanga.
Ripert said he would not comment on 'judicial subjects.' He looked, several
reporters noted, sick or tired or both. Here's hoping for a new era of openness...."


v. "War crimes court indefinitely postpones start of trial for Congo ex-warlord,"
Associated Press, 11 June 2008
http://www.iht.com/articles/ap/2008/06/11/europe/EU-GEN-International-Court-Congo.php

"On Tuesday, defense attorney Jean-Marie Biju Duval urged the court to drop the case
against Lubanga because of the prosecution's 'scandalous' refusal to reveal evidence
that could argue for Lubanga's innocence or mitigate his guilt.

Presiding judge Adrian Fulford announced the postponement at a brief hearing Wednesday.

He said the issues raised during Tuesday's session 'involve significant and
complicated matters,' which the judges would discuss in a written ruling to be
released within a week, and probably before the weekend.

'I am sorry that no more can be said at this stage, but it would be inappropriate to
give a partial judgment at this point,' Fulford said. 'The complete picture will be
made clear in the very near future.' "

vi. "Accused Congo warlord Lubanga asks U.N. war crimes court to dismiss case,"
Associated Press, 10 June 2008,
http://www.iht.com/articles/ap/2008/06/10/europe/EU-GEN-International-Court-Congo.php

"A lawyer for a former Congolese warlord asked a war crimes court Tuesday to dismiss
the case against his client because U.N. agencies have refused to disclose evidence
they gave to prosecutors.

Defense attorney Jean-Marie Biju Duval said the 'scandalous' secrecy meant his
client, Thomas Lubanga, would not receive a fair trial on charges of recruiting,
conscripting and deploying child soldiers to fight in eastern Congo in 2002-03.

... Prosecutor Ekkehard Withopf said the nondisclosure of documents should make no
difference since the prosecution had given the defense similar material from other
sources.

Fulford called the secrecy an 'elephant standing in the corner of this courtroom,'
and suggested that the U.N. organizations 'may be expected doubly or triply to trust
the judges of this court' to keep documents secret if they had trusted the
prosecution to do so.

The defense attorney, Biju Duval, argued that the case should be dismissed. Fulford
said he would rule Wednesday on the motion."

vii. "Suspended DRCongo war crimes trial 'not finished',"AFP, 17 June 2008,
http://www.lemonde.fr/web/depeches/0,14-0,39-35872493@7-60,0.html

"The suspension of war crime proceedings against former Democratic Republic of Congo
militia chief Thomas Lubanga Dyilo 'does not mean the end of the matter,' a court
official said here Tuesday.

'The procedure is not finished. It has been suspended for technical reasons, valid
reasons,' said Clerk of the International Criminal Court (ICC) Silvana Arbia, adding
that the decision indicated the importance accorded to the rights of the defence.

...Arbia added that she hoped that a solution to the legal problems in the case
would be found.

'It is necessary to consider this judge's decision as positive because it shows that
the right of the defense is primordial,' affirmed Arbia...

If the proceedings were suspended permanently, however, she said the ICC would see
that it looked at how to compensate victims. The court has said that it will decide
on June 24 whether Lubanga should be freed.

(Translation is informal and provided by CICC Secretariat.)

viii. "Brief encounters," By Joshua Rozenberg, Legal Editor , UK's Telegraph,
18/06/2008,
http://www.telegraph.co.uk/news/newstopics/lawreports/rozenberg/2153683/Law-Brief-encounters.html

"The first trial at the International Criminal Court has gone so badly wrong that
next Tuesday the court will consider releasing the defendant, Thomas Lubanga, after
more than two years in custody.


Sir Adrian Fulford, the British High Court judge who was to preside over his trial,
has found that prosecutors had failed to disclose 95 'potentially exculpatory'
documents to Lubanga, said to have been one of the Democratic Republic of Congo's
most dangerous warlords. This made it impossible for him to have a fair trial on
charges of using children as weapons of war.

Sir Adrian's decision, though painful, strikes me as entirely justified and in the
best traditions of the English courts. The prosecutor, Luis Moreno-Ocampo - or his
deputy, Fatou Bensouda - should resign immediately....

ix. "DRC: ICC suspension a risk for Ituri stability," Reuters (Source: IRIN), 19 Jun
2008,
http://www.alertnet.org/thenews/newsdesk/IRIN/ad62acc9b47f02582b90511b5705aed3.htm

"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.

'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.

...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.

...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.

...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.

See also:

- "War crimes court reprimands prosecutor, will consider release of ex-Congo
warlord", The Associated Press, 16 June 2006,
http://www.iht.com/articles/ap/2008/06/16/europe/EU-GEN-International-Court-Congo.php

- "DR Congo ex-warlord 'may go free'," BBC News, 16 June 2008,
http://news.bbc.co.uk/2/hi/africa/7457523.stm

- "ICC's first war crimes trial delayed," AFP, 11 June 2008,
http://news.yahoo.com/s/afp/20080611/wl_africa_afp/warcrimesdrcongoicclubanga

- "Le procès de Thomas Lubanga devant la CPI est suspendu," par Stéphanie Maupas
(RFI), 14 juin 2008, http://www.rfi.fr/actufr/articles/102/article_67503.asp
<http://www.rfi.fr/actufr/articles/102/article_67503.asp>

- "International Criminal Court suspends case against Congolese rebel militia
chief", UN News Service, 16 June 2008,
http://allafrica.com/stories/200806170005.html

- "La CPI se penchera mardi 24 sur la libération du Congolais Thomas Lubanga", AFP,
13 juin 2008, http://www.monuc.org/news.aspx?newsID=17594
<http://www.monuc.org/news.aspx?newsID=17594>

II. ANALYSIS

i. "Thomas Lubanga Dyilo: Trial Postponed Indefinitely due to Non-Disclosure of
Exculpatory Evidence," International Criminal Bar, June 2008 Newsletter,
http://85.17.104.100/bpi-icb/files/icb&#x20;newsletter&#x20;june.pdf

"Trial Chamber I has vacated the 23 June start date for the Lubanga trial, and no
new date has been set pending the resolution of problems which have arisen as a
result of agreements made by the Prosecutor under Article 54(3)(e) of the Rome
Statute...

Ninety-five (95) documents are in the possession of the Prosecutor which were
accepted under this confidentiality provision and which contain exculpatory evidence
which would assist the defence, but where the UN agencies who provided the documents
have either refused to consent to their disclosure, even to the judges of the ICC,
or else they have simply failed to respond to requests for consent to disclose. The
prosecution has argued that nondisclosure would not be prejudicial because the
evidence is cumulative of other evidence already provided to the defence. However,
the prosecution has refused to allow the judges of the Trial Chamber to view the
evidence in order to determine whether fair trial guarantees require disclosure. The
defence has argued that the confidential documents include evidence supporting
Lubanga's contention that he had demobilized child soldiers, and that he lacked
control over the militia commanders who actually committed the crimes....

Article 54(3)(e) has been the subject of concern for some time. The Trial Chamber
had earlier warned at a public hearing on 18 January that it was conceivable a case
might require dismissal if exculpatory evidence were not disclosed as a result of
the confidentiality agreements. As a result, the Prosecutor has publicly asked NGO's
to carefully consider whether or not to provide information under Article 54(3) if
it contains exculpatory evidence.

The Trial Chamber has earlier granted two motions for leave to file interlocutory
appeals which are still pending in the case (one on disclosure issues and one on
victims participation). The Trial Chamber's decision on victims participation has
been partially suspended by the Appeals Chamber pending its decision on the appeal.
A motion for leave to appeal a third decision involving defence disclosure issues
has been denied over the strong dissent of one of the three presiding judges.

As a result of the denial of the motion for leave to appeal, the Trial Chamber's
ruling stands, and should the trial be re-scheduled in future, the Lubanga defence
will be required to: a) inform the Chamber and the Prosecution of his intent to
raise an alibi under Rule 79(l)(a) of the Rules of Procedure and Evidence or a
ground for excluding criminal responsibility under Rule 79(l)(b) of the Rules; b)
Furnish the Chamber, the prosecution and the participants three weeks in advance of
the trial with a document setting out in general terms the defences the accused
intends to rely on and any substantive factual or legal issues that he intends to
raise; c) Provide the Chamber, the prosecution and the participants three weeks in
advance of the trial with details of any applications he intends to advance as
regards the admissibility or relevance of evidence, or other substantive points of
law that need to be resolved before the commencement of the trial; d) Furnish the
prosecution and the Chamber, following the completion of the prosecution case, with
the name, address and date of birth of any witness, to enable the prosecution to
conduct appropriate enquiries; and e) Provide the Chamber, the prosecution and the
participants with any evidence intended for use by the defence, other than the oral
testimony of a witness, three days in advance of its presentation."

ii. "ANALYSIS-New global court: down but not out over trial halt," by Emma Thomasson
(Reuters), 18 June 2008,
www.uk.reuters.com/article/latestCrisis/idUKL1818690520080618


"A decision by judges at the International Criminal Court to suspend its first
trial is a blow for the world's first permanent war crimes tribunal as it seeks to
build credibility and momentum.

Court backers had eagerly awaited the planned start next week of the trial of
Congolese militia leader Thomas Lubanga but judges halted proceedings on Monday,
saying prosecutors' failure to disclose some evidence could prevent a fair trial.

'It has the potential to really set things back,' said Lorraine Smith of the
International Bar Association, a global group for the legal profession. 'But I don't
think it will be the sort of setback that will derail the court.'

'We laud the decision because it does say something about the impartiality of the
court and its desire to uphold fair trial rights but we recognise it is
disappointing for victims.'

ICC prosecutor Luis Moreno-Ocampo said he was confident Lubanga would still face
trial, but experts said potential appeals could hold up proceedings for months,
overshadowing celebrations in July of the 10th anniversary of the court's founding
treaty -- the Rome Statute.

The disappointment of the delay of the first trial comes just as the court had been
gaining some momentum, last month netting its biggest fish when Belgian authorities
arrested Congo's exiled former Vice-President Jean-Pierre Bemba.

'We all want the court to succeed,' said Nick Grono of the International Crisis
Group. "But it is critically important for the court to get a conviction ... once it
gets convictions its credibility will grow enormously.'
...The judges decided to suspend the Lubanga trial because the prosecution could not
share documents with the defence that could help their case because they were
provided on the condition of confidentiality to protect sources in war zones.

'It demonstrates the real challenge of pursuing prosecutions in the middle of live
conflicts where people are still at risk,' said Grono of the International Crisis
Group.

The court should indict more high-level figures in future and pursue investigations
beyond Africa, he said, but it first had to make sure the Lubanga trial is salvaged.

...Human rights groups said they hope the U.N. and other sources of the contentious
Lubanga evidence can be persuaded to lift their demand for confidentiality so the
case can proceed.

'Taking into account the hope of the victims to finally see their case heard at the
ICC, we really hope that a judicial solution will be found that protects the rights
of the defence and the rights of victims,' said Souhayr Belhassen, president of the
International Federation of Human Rights (FIDH)."

*****
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