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DRC, Part I: ICC and CICC Statements on Stay of Lubanga Trial

20 June 2008

Dear all,

On 13 June 2008, Trial Chamber I of the International Criminal Court imposed a stay
on the proceedings in the case of The Prosecutor v. Thomas Lubanga Dyilo. Unless
this stay is lifted, the trial process in all respects will remain at a halt. The
Chamber scheduled a public hearing in the Lubanga case on 24 June 2008 in order to
consider the release of the accused.


Please find below information on recent developments related to the Thomas Lubanga
Dyilo case including public statements by the ICC and CICC members. The Trial
Chamber's full decision can be accessed at
http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf


This is the first of a two-part message on the stay of proceedings in 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. PUBLIC HEARING ON LUBANGA CASE SCHEDULED


"Media Advisory: A public hearing in the Lubanga case on 24 June," ICC, 20 June
2008, http://www.icc-cpi.int/press/pressreleases/385.html

"Please be advised that on Tuesday 24 June 2008, a public hearing in the case The
Prosecutor v. Thomas Lubanga Dyilo will take place at the seat of the Court in The
Hague. The proceedings will start at 14.00, in Courtroom I.

This hearing is scheduled in order to consider the release of the accused, following
the decision of Trial Chamber I, on 13 June 2008, imposing a stay on the proceedings
of the Lubanga case. However, no decision will be rendered on 24 June. The judges
will issue a written decision in due course....

The courtroom I proceedings can also be followed on the ICC website at:

Courtroom I:

- English: http://livestream.xs4all.nl/icc1.asx

- French: http://livestream.xs4all.nl/icc2.asx

Please note that there will be a 30-minute delay in transmission of the public hearing.

The hearing schedule may be modified by Chambers at any time, therefore please
regularly consult the hearing schedule on the ICC website.

N.B. All hours noted refer to local time in The Hague."

II. CICC MEMBER STATEMENTS AND HRW Q & A

i. "Profound Disappointment Following the Suspension of the Lubanga Case,"
International Federation of Human Rights (FIDH), 17 June 2008,
http://www.fidh.org/spip.php?article5650

"The International Federation for Human Rights (FIDH), and its member organisations
in the Democratic Republic of Congo (DRC), the Association africaine des droits de
l'Homme, Groupe Lotus and Ligue des électeurs, express their profound disappointment
following the decision of Trial Chamber I of the International Criminal Court (ICC),
to stay the proceedings against Thomas Lubanga Dyilo1.

The judges concluded that the trial of Thomas Lubanga Dyilo for the conscription,
enlistment and use of children under the age of 15 in hostilities, the first trial
of the ICC scheduled to begin 23rd June, could not take place and that 'the trial
process in all respects will remain at a halt'. It is expected that the Prosecutor
will make an appeal. A hearing set for 24 June 2008 will be dedicated to the
eventual release of Thomas Lubanga.

The Chamber concluded that the right to a fair trial could not be guaranteed due to
the 'abusive use' by the Office of the Prosecutor of article 54(3)(e) of the ICC
Statute. This provision, which authorises the Prosecutor to obtain documents on
condition of confidentiality, would have been used beyond the scope of the
exceptional situations for which it is authorised. The Office of the Prosecutor
tried numerous times, without success, to obtain the authorisation of the
information providers (in particular the United Nations) to lift confidentiality.
The judges thought that in this particular case this decision resulted in the
impossibility of disclosing close to 200 exculpatory materials, and thus did not
permit Thomas Lubanga to prepare his defence properly.

'Considering victims' strong expectations to see their cases heard at last before
the International Criminal Court, we deeply hope that a judicial solution protecting
both the right of the defence and the rights of victims to justice will be found
permitting the organisation of Thomas Lubanga's trial,' declared Souhayr Belhassen,
President of the FIDH.

FIDH and its member organisations call for:

- the Registry and the Office of the Prosecutor to intensify their outreach
activities on the ground in order to explain the consequences of this decision to
victims;

- the Office of the Prosecutor to find a fair balance between the need to protect
sources and the respect of the rights of the accused and other participants in the
proceedings;

- the United Nations and the other information providers to reconsider the
possibility of lifting confidentiality..."


ii. "Trial Chamber's decision to stay proceedings in Lubanga case is clear
indication of the ICC's commitment to uphold fair trial rights," International Bar
Association, 18 June 2008, http://www.ibanet.org/iba/article.cfm?article=174

The International Bar Association (IBA) today described the decision by the judges
of Trial Chamber I of the International Criminal Court (ICC) to stay the proceedings
in the case of Thomas Lubanga Dyilo, due to the prosecution's inability to disclose
potentially exonerating confidential material to the defence, as a clear indication
of the ICC's commitment to respect the fair trial rights of defendants. While
recognising that the decision is likely to be very disappointing for victims, the
IBA nevertheless noted that the decision reinforced the fact that the ICC is an
independent, impartial institution committed to conducting trials that are fair.

On 13 June 2008, the Trial Chamber decided to halt the Lubanga proceedings just over
a week before the trial was due to commence because judges determined that the
prosecution had incorrectly applied a provision in the Rome Statute which allows the
prosecution to obtain documents from a number of 'information providers' on
condition of confidentiality for the limited purpose of leading them to new
evidence. The judges found that the prosecution had decided to use the information
which had been provided, not only to generate new evidence as envisioned by the
Statute, but also during the trial. In the Lubanga case, the prosecution admitted
that over 200 of the documents that it had obtained confidentially from information
providers, such as the United Nations, are potentially exculpatory, that is could
show or tend to show the innocence of the defendant, or are material to the
defence's preparation of its case.

In commenting on the Trial Chamber's decision, Justice Richard Goldstone, former
Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia,
and the International Criminal Tribunal for Rwanda, stated: 'Disclosure of
exculpatory evidence in the possession of the prosecution is fundamental to the
accused's right to a fair trial. If the way that the prosecution interprets and
applies the legal provisions governing the use of material obtained through
confidentiality agreements operates to deprive the defendant of potentially
exonerating evidence or material necessary for the preparation of his defence, then
this would be unfair. In those circumstances the Trial Chamber is quite correct in
bringing a halt to the proceedings.'

Although the prosecution made efforts to obtain the consent of the information
providers to disclose the exculpatory material, most of them refused. Information
providers often restrict the use of material provided confidentially in order to
protect their staff, and under the Rome Statute they cannot be forced to allow
confidential information to be disclosed.

The decision may have serious implications for the future conduct of some cases
before the ICC and the manner in which the prosecution negotiates confidentiality
agreements. The greatest impact, however, is likely to be on victims and witnesses
in the Democratic Republic of Congo who have been waiting for the opportunity to
participate in the proceedings and eventually to obtain reparations for the harm
suffered.

In this regard, Justice Goldstone states: 'It is regrettable that a stay of
proceedings will impact negatively on the right of victims to participate in the
case and obtain reparations; however, it would be little comfort to victims if the
case continued in this vein and was thereafter vitiated due to unfairness. Given the
circumstances, the Trial Chamber had a duty to uphold the right of the accused to a
fair trial. '

iii." Congo-Kinshasa; Questions And Answers on Thomas Lubunga's International Court
Case,"(reprint of Human Rights Watch Q&A) Africa News, 19 June 2008,
http://allafrica.com/stories/200806200022.html

International Criminal Court's Trial of Thomas Lubanga "Stayed"

Who is Thomas Lubanga?

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.

What charges did the International Criminal Court (ICC) prosecutor bring against
Lubanga?

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.

Why isn't the trial against Lubanga going ahead 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."

Why can't the prosecution simply turn this information over to the defense?

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 it collects, even if is collected confidentially. In the Lubanga case,
the prosecution has collected more than 200 documents under article 54(3)(e) that
could be considered exculpatory. Some of the information providers-including the
United Nations-have refused to disclose the confidential information 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 unwilling 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.

Why is this information so important for the defense's case?

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 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 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.

If article 54(3)(e) jeopardizes a defendant's fair trial rights, why use it?

Article 54(3)(e) does not compromise the defendant's fair trial rights if it is used
in a limited way, and in fact 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.

So if the prosecution gets permission to give the documents to the court, then the
trial can start, right?

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.

Does this mean that Lubanga has been acquitted?

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

What does this mean for the victims of Lubanga's alleged crimes?

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 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.

*****
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The Coalition for the ICC is not an organ of the court. The CICC is an independent
NGO movement dedicated to the establishment of the International Criminal Court as a
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The Coalition will continue to provide the most up-to-date information about the ICC
and to help coordinate global action to effectively implement the Rome Statute of
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