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DRC: ICC and ICTJ press releases on 24 June hearing; related media coverage

23 June 2008

Dear all,

Please find below information on the latest update related to the case of "The Prosecutor vs. Thomas Lubanga Dyilo," including two ICC press releases on today's hearing; a press release by the International Center for Transitional Justice (ICTJ) and related media coverage.

The CICC has produced a factsheet with a glossary of key terms in relation to trial proceedings in the Thomas Lubanga Dyilo case. It is accessible on the CICC website at:
www.coalitionfortheicc.org/documents/CICC_TCI_Lubanga_stay_eng_24_June_2008.pdf

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. ICC PRESS RELEASES

i. "The Office of the Prosecutor supports the need for a fair trial and promises justice will be done for Lubanga's victims," ICC Office of the Prosecutor, 24 June 2008, http://www.icc-cpi.int/press/pressreleases/388.html

Available in English and French

"On June 23, The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) appealed the decision to stay the proceedings in the case of The Prosecutor v. Thomas Lubanga Dyilo. 'The Foundations of the ICC have to be based on high standards and efficiency' the Prosecutor said. 'We will harmonise fair trials with respect for the institutions that provide information to us. The basic framework to solve this particular problem is settled with the UN and we will explain this clearly to the judges'. The OTP is highly confident that the problem will be resolved in the coming weeks and the trial of Thomas Lubanga Dyilo will start in September. 'There will be justice for Lubanga's victims'
Prosecutor Moreno-Ocampo said.

The International Criminal Court is an independent, permanent court that investigates and prosecutes persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes if national authorities with jurisdiction are unwilling or unable to do so genuinely. The Office of the Prosecutor is currently investigating in four situations: The Democratic Republic of Congo, northern Uganda, the Darfur Region of Sudan, and the Central African Republic, all still engulfed in various degrees of conflict with victims in urgent need of protection."

ii. "Trial Chamber imposes a stay on the proceedings of the case against Thomas Lubanga Dyilo," ICC Press Release (ICC-CPI-20080616-PR324-ENG), 16 June 2008, http://www.icc-cpi.int/press/pressreleases/381.html

Situation: The Democratic Republic of the Congo
Case: The Prosecutor v. Thomas Lubanga Dyilo

On 13 June 2008, Trial Chamber I imposed a stay on the proceedings of the case The Prosecutor v. Thomas Lubanga Dyilo. Unless this stay is lifted the trial process in all respects will remain at a halt. In these circumstances, the Chamber scheduled a hearing on Tuesday 24 June 2008 at 14.00 in order to consider the release of the accused.

Trial Chamber I delivered its "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", following the Chamber's oral announcement on 11 June 2008 that the trial would not commence on 23 June 2008.

The Chamber came to the conclusion that the prosecution had incorrectly used Article 54 (3) (e) of the Rome Statute which allows the Prosecutor, exceptionally, to receive information or documents, on the condition of confidentiality, which are not for use at trial but solely for the purpose of generating new evidence. The Chamber concluded that this misuse has had the consequence that a significant body of exculpatory evidence has not been disclosed to the accused, thereby improperly inhibiting the opportunities for the accused to prepare his defence.

In this case over 200 documents, which the prosecution accepts have potential exculpatory effect or which are material to defence preparation, were obtained from information providers, such as the United Nations, with agreements not to be disclosed.

The judges concluded that the disclosure of exculpatory evidence in the possession of the prosecution is a fundamental aspect of the accused's right to a fair trial.

Background information

On 17 March 2006, Thomas Lubanga Dyilo, the founder and leader of the Union des patriotes congolais (Union of Congolese Patriots) was arrested and surrendered to the Court upon a warrant of arrest issued by Pre-Trial Chamber I at the request of the Prosecutor.

On 29 January 2007, Pre-Trial Chamber I confirmed the charges brought by the Prosecutor against Thomas Lubanga Dyilo, namely war crimes consisting of conscripting and enlisting children under the age of 15 into the FPLC, the military wing of the Union des patriotes congolais (UPC), and using them to participate actively in hostilities in Ituri, from September 2002 to 13 August 2003.

The Prosecutor v. Thomas Lubanga Dyilo is the first case to arise from the situation in the Democratic Republic of the Congo (DRC); the second case is The Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, and the third case is The Prosecutor v. Bosco Ntaganda. Investigations are ongoing in the DRC.

II. ICTJ RELEASE

"Congo-Kinshasa: ICC Lubanga Case and the Future," International Center for Transitional Justice (New York) Press Release, 23 June 2008, http://www.ictj.org/en/news/features/1777.html

"The International Criminal Court's decision to halt the first case to come to trial does not diminish the gravity of the charges filed in any of the cases pending before the court or alter the fundamental importance of on-going investigations by the prosecutor's office, the International Center for Transitional Justice said Monday.

On June 24, the ICC is to hear arguments about the possible release of Thomas Lubanga, who is charged with war crimes for allegedly drafting children as militia members during fighting in the Democratic Republic of Congo in 2002-2003. No date has been set for the court issuing its ruling.
The prosecution and the defense will have the right to appeal.

Earlier, the court ruled that the prosecution was obliged to share with the defense more than 200 documents that may contain information supporting Mr. Lubanga's claim of innocence. That evidence was originally gathered by the United Nations from sources that have not waived their confidentiality. The narrowness of the charges against him may render his case vulnerable in the light of such challenges.

'I urge the court, the prosecutor's office, the defense and the UN to find a way to use these documents in a way that is consistent with a fair trial,' said Juan E. Méndez, president of the ICTJ. 'These are early days for the court, and every party is exploring new ground.'

The ICTJ sees the role of the court as an institution is to guarantee fair trials for persons charged with such serious crimes, and the vigilance of the judges is to be welcomed. The credibility of the ICC as a permanent institution does not rest on the outcome of any particular case.

The ICTJ supports the prosecutor office's continued investigations into possible war crimes and crimes against humanity in the DRC, Sudan and other states, where states do not exercise such a responsibility themselves.

In a formal statement earlier this month to the UN Security Council, the prosecutor of the ICC said he would soon seek new arrest warrants for serious crimes in the Darfur region of Sudan over the last five years.

The ICTJ believes the prosecutor's office should consider the possible impact of an arrest warrant. But this does not mean the court should avoid taking action against people - including heads of state - powerful enough to threaten mayhem. As an independent body, the prosecutor's office must weigh these factors carefully and ultimately take these decisions independently.

In Sudan, targets of potential new warrants may threaten to disrupt humanitarian missions or peace initiatives.

'These threats are inevitable, but it would be a mistake to yield to that kind of blackmail,' said Mr. Méndez. "International justice mechanisms can serve the cause of peace, but only if we let them work as instruments of justice."

III. MEDIA COVERAGE OF 24 JUNE 2008 HEARING

i. "ICC to Hear Arguments Tuesday About the Possible Release of Congo Rebel Leader Lubanga," Voice of America Interview with Juan Mendez, President of ICTJ, 24 June 2008, http://www.ictj.org/en/news/coverage/article/1780.html

[Interview is accessible as an MP3 file at www.voanews.com/mediaassets/english/2008_06/Audio/Mp3/06-24-08 DBA Butty - ICC - Lubanga Hearing.Mp3]

"...Juan Mendez is president of the International Center for Transitional Justice (ICTJ). He told Tuesday's hearing is important because it speaks to the legitimacy of the ICC and due process.

'The hearing on Tuesday is an interrogatory hearing on the question of the use of evidence of a confidential nature. This is of course a very important matter because it deals with the legitimacy and credibility of the International Criminal Court to offer due process. To that extent, it's good that the International Criminal Court is taking pains to ensure that Mr. Lubanga gets a fair trial,' he said.

... 'The prosecutor has to have prima facie evidence to bring it before the court, and he definitely has. That doesn't mean that once the prosecutor makes a decision, Mr. Lubanga has to be considered guilty. In fact the evidence presented by the prosecutor has to be reviewed by the court. Right now the court is not saying that he is innocent. It's just reviewing procedural way in which the evidence can be presented,' he said.

Mendez agreed in part that the way in which the ICC handles the Lubanga trial could affect future war crimes cases at the court.

'First I'm not assuming that he (Lubanga) will be let go. As I said, the court has found serious problems with the way the evidence has been gathered and presented. But it may still be possible to reject some evidence and use some other kind of evidence. As you know, the evidence comes from the United Nations and from its sources in the Democratic Republic of Congo. We don't know why the information is confidential. But if the confidentiality can be lifted, then the trial can proceed. But you're absolutely right that the court may decide in the future that the case is fatally flawed and cannot proceed, and in that case Mr. Lubanga will definitely be released,' Mendez said.

Mendez, who described his organization as a supporter of a serious International Criminal Court, said if Lubanga cannot be tried because of flawed evidence, it would legitimize the ICC and not discredit it."

ii. "Prosecutors seek to resume trial of Congolese militia leader," by Emma Thomasson (Reuters), 24 June 2008, www.africa.reuters.com/top/news/usnBAN458396.html

"Prosecutors on Tuesday sought to get the first trial of the International Criminal Court back on track after judges suspended the hearing against a suspected Congolese militia leader because of a dispute over evidence.

Representatives of victims of Thomas Lubanga's alleged war crimes warned that his release could reignite conflict in Congo's eastern Ituri region.

The prosecution appealed late on Monday against a decision by the world's first permanent war crimes tribunal to suspend proceedings against Lubanga due to a dispute over the disclosure of confidential evidence.

The court called a public hearing on Tuesday to consider Lubanga's release. But Judge Adrian Fulford said he first had to consider the prosecution's request for an appeal before he could consider freeing the accused.

He said he planned to issue a decision on the prosecution appeal to restart proceedings in writing next week.

Lubanga's defence told the court that the halt to proceedings should automatically trigger his release. But Carine Bapita Buyangandu, a lawyer representing the victims, warned this could reignite conflict in Congo's Ituri region.

'There will be a fire ball in Ituri and we will all be held accountable throughout history for this,' she said. 'We have waited 20 months.'

...The halt to his trial that had been due to start on Monday was seen as a major setback for the court set up in 2002 which had been gaining momentum of late after a slow start.

...Prosecution lawyer Ekkehard Withopf said the United Nations had agreed to let the judges view some of the confidential material so the trial should be allowed to continue.

Luc Walleyn, another lawyer representing victims, said how the court decided to handle the dilemma about such confidential evidence was crucial for the future of international justice. 'We are at a crossroads ... it is the court and international criminal justice that is at a crossroads,' he said, adding there seemed to be a fundamental contradiction between the rights of the accused and prosecution with regards evidence.

'Everybody here has a responsibility to make sure that an excess of justice doesn't lead to injustice,' Walleyn said.

Lubanga's lawyer Jean-Marie Biju-Duval said the court was under pressure but rejected suggestions his client's release could reignite violence in Congo. 'Justice is not against peace. There can not be any justice without a strict application of the law,' he said...."

iii. "Lubanga seeks release pending war crimes trial," AFP, 24 June 2008 www.afp.google.com/article/ALeqM5iCn_7yTwvsLHaSFy4IwV-mu-pPdQ

"Former Democratic Republic of Congo militia chief Thomas Lubanga Dyilo could be granted a release from detention next week after his war crimes trial was delayed.

'There is no legal basis today for Thomas Lubanga to be kept in detention and we are requesting his immediate release,' his lawyer Catherine Mabille argued before the International Criminal Court. Mabille said the UN tribunal's decision to stay the proceedings provided a legal basis for his release from custody.

Presiding judge Adrian Fulford said a written judgment would be handed down as soon as possible - 'hopefully during the course of next week'.

...Mabille claimed the prosecution's failure to give the defence access to the UN-sourced documents had implications 'for the very functioning of international justice'.

'What is the purpose of international justice -- is it to search for the truth or is it to search for what the UN would want us to (think)?' she asked. 'If sources can dictate to us the policy they want us to pursue, what does that mean for the ... independence of judges and the prosecution?'

...Lubanga, in a dark suit, white shirt and blue tie, sat quietly at the back of the courtroom listening to the arguments under constant guard."

iv. "Intl Criminal Court unhappy with Lubanga prosecution," Deutsche Presse-Agentur, 24 June 2008, http://www.monstersandcritics.com/news/africa/news/article_1413106.php/Intl_Criminal_Court_unhappy_with_Lubanga_prosecution__Roundup_
<http://www.monstersandcritics.com/news/africa/news/article_1413106.php/Intl_Criminal_Court_unhappy_with_Lubanga_prosecution__Roundup_>

"The International Criminal Court in The Hague said it was 'unlikely' it would accept a compromise proposal by the prosecution on classified material used as evidence in the trial of Congolese militia leader Thomas Lubanga.

...During Tuesday's hearing, the prosecution proposed that the court study the classified information - originating from the United Nations among other sources - at the International Criminal Court premises.

The prosecution argued that the court could then establish if Lubanga's rights would indeed be compromised if the defence did not have access to the documents.

The court was unhappy with the proposal, particularly as under its terms the judges would be prohibited from making notes.

Court president Sir Adrian Fulford said it was unlikely the court would accept the compromise.

The defence on Tuesday demanded the immediate release of Thomas Lubanga.
In response Carine Bapita, representing the victims, asked the court to consider the personal safety of the victims if Lubanga were released. She indicated his possible release might cause political unrest in the Democratic Republic of Congo. The court rescheduled a ruling on the issue for next week."

v. "International war crimes court likely to rule next week on release of Congo warlord from Hague," Associated Press, 24 June 2008, http://www.iht.com/articles/ap/2008/06/24/europe/EU-GEN-International-Court-Congo.php

"...At a hearing Tuesday, the judges said they were likely to reject an offer by the U.N. to let them browse through the secret documents but not make copies or take notes. Next week the court is also to make a decision about the prosecution's application to appeal the ruling on suspending the trial.

IV. ANALYSIS

i. "War crimes court's first case in danger of collapse over dispute on confidential sources," Associated Press, 23 June 2008, http://www.iht.com/articles/ap/2008/06/23/europe/EU-GEN-International-Court-Confidential-Sources.php

"The first case at the world's first permanent war crimes tribunal is in danger of collapsing amid a dispute over confidential sources in the trial former Congolese warlord.
The case of Thomas Lubanga _ charged with recruiting children to fight in Congo's eastern Ituri region in 2002-03 had been due to start Monday at the International Criminal Court.

The Hague-based court planned a hearing Tuesday to consider whether to release Lubanga...The case tests the right to protect informants in conflict areas against a defendant's right to scrutinize his accusers. It also is being watched as the court's first case since it was established in 2002 based on a 1998 international treaty..."

ii. "Jean-Pierre Bemba and Thomas Lubanga Cases: The Congolese Political Class Doubts the Impartiality of the ICC," Le Relevateur, 24 June 2008, http://www.lerevelateur.net/suite.php?newsid=2300 (in French)

"...This [Lubanga case] is proof that the ICC is finding its way. It is making its first steps, and in doing so is dithering. It is trying to establish a certain kind of jurisprudence,' said MLC Senator Eve Bazaiba who tried to explain what is happening at the ICC. ''Ever since the ICC was set up, there has not been a single trial brought to term. Therefore, we do not know the intention of the ICC which is why we say the ICC has a political bent, a political influence is exerting itself on the ICC,' she added..."

Translation is informal and provided by CICC Secretariat.

See also:

"The misguided ways of the first trial at the ICC illustrate the weakness of this institution" ("Les errements du premier procès devant la CPI illustrent la fragilité de cette institution,") by Stéphanie Maupas, Le Monde, 23 June 2008,
http://www.lemonde.fr/afrique/article/2008/06/23/les-errements-du-premier-proces-devant-la-cpi-illustrent-la-fragilite-de-cette-institution_1061699_3212.html?xtor=RSS-3208

*****
CICC's policy on the referral and prosecution of situations before the ICC:

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