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DRC/Lubanga: Latest Information Related to the Recent Decision of the ICC PTC I

21 July 2010

Dear all,

Please find below latest information related to the recent decision by the International Criminal Court (ICC) to release Thomas Lubanga, on trial for child soldiers crimes allegedly committed in the Democratic Republic of Congo (DRC). On 8 July 2010, ICC Trial Chamber I ordered the stay of the proceedings in the Lubanga case. At a hearing on 15 July 2010, the Trial Chamber ordered the release of the accused. However, this order will not be implemented immediately. On 16 July 2010, the Office of the Prosecutor filed an appeal against the order of release and urgently requested suspensive effect. The accused cannot leave detention until the Appeals Chamber has resolved whether the release order is to be suspended or not.

This message includes an ICC press release and related filings (I), a factsheet issued by Human Rights Watch explaining these latest developments in the case (II), as well as related news articles (III).

Please also 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,

CICC Secretariat
www.coalitionfortheicc.org

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I. ICC PRESS RELEASE AND RELATED FILINGS

[These documents have been produced by the ICC. The CICC Secretariat distributes them as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The documents do not reflect the views of the CICC as a whole or its individual members.]

i. "Trial Chamber I orders the release of Thomas Lubanga Dyilo - implementation of the decision is pending," ICC Press Release, 15 July 2010 http://www.icc-cpi.int/menus/icc/press and media/press releases/trial chamber i ordered the release of thomas lubanga dyilo _ implementation of the decision is pend?lan=en-GB

"Following its decision, dated 8 July, 2010, imposing an unconditional stay on the proceedings of the case The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I of the International Criminal Court (ICC) today ordered the release of the accused. According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.

However this order will not be implemented with immediate effect. "This order shall not be enforced until the five day time limit for an appeal has expired", stated presiding Judge Adrian Fulford in a hearing today. "If an appeal is filed within the five day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the Appeals Chamber has resolved whether this order granting release is to be suspended", Judge Fulford continued. The Chamber also noted that an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. ..."

ii. "Redacted Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU," Trial Chamber I, Decision ICC-01/04-01/06-2517-RED, 8 July 2010, http://www.icc-cpi.int/iccdocs/doc/doc906146.pdf

iii. "Prosecution's Appeal against Trial Chamber I's oral decision to release Thomas Lubanga Dyilo and Urgent Application for Suspensive Effect," ICC Office of the Prosecutor, ICC-01/04-01/06-2522, 16 July 2010, http://www.icc-cpi.int/NR/exeres/5D52AF1A-8AAF-4798-B5BD-7DAA2C6190E9.htm

II. CICC MEMBER HRW'S FACTSHEET

i. "Recent Developments in the ICC Case of Thomas Lubanga," HRW, 16 July 2010, http://www.hrw.org/en/news/2010/07/16/status-international-criminal-court-trial-thomas-lubanga - excerpts

"...2. Why have the judges ordered Lubanga's release?
On July 15, 2010, Trial Chamber 1 heard submissions as to whether or not to keep Lubanga in detention after it had decided to stay the proceedings against him (see below question 3). Lubanga has been in preventive detention for four years. At the end of the hearing, Trial Chamber I ordered that Lubanga be released. However, this decision is not going to be executed immediately. Indeed, the prosecutor has five days to ask the Appeals Chamber to suspend the decision to release Lubanga while it is considering the appeal in relation to the stay of proceedings.
The same issue also arose in 2008, when the chamber stayed the proceedings due to the prosecution's failure to disclose exculpatory evidence (see below question 10). Although the trial chamber had initially ordered that Lubanga be released, the Appeals Chamber had then reversed this decision, indicating that a stay of proceedings subjected to conditions did not necessarily warrant the release of the accused and that other relevant factors, such as the risk that he flee or threaten witnesses should also be taken into consideration.
Thus, a stay of proceedings does not automatically mean that the accused will be released.

3. Why is the Lubanga trial stayed?
On July 8, 2010, the three judges of Trial Chamber I unanimously decided to "stay" the proceedings against Lubanga - meaning that in all respects, the trial has been halted - due to the failure of the prosecutor to comply with the chamber's order that he reveal the identity of one of his intermediaries to Lubanga and his defense team. In this context, intermediaries are persons who provide assistance to the Office of the Prosecutor with discrete aspects of its investigations, including by identifying leads or witnesses. The judges found that without at least a limited disclosure to the Lubanga defense team of the intermediary's identity and in light of the prosecution's failure to comply with its orders, a fair trial is not possible under the current circumstances. The Office of the Prosecutor has appealed the decision to stay the proceedings.

4. What led to the decision to stay the trial?
The current focus of Lubanga's defense is to discredit prosecution witnesses who claim to have been child soldiers in the UPC. Since the opening of the defense case on January 27, 2010, some of the defense witnesses have testified that they had been paid or coached by intermediaries of the Office of the Prosecutor to lie. Three intermediaries in particular, known by the pseudonyms "321," "316," and "143," were repeatedly cited as having engaged in such practices.

In order to enable Lubanga's team to fully investigate these allegations, the judges ordered the prosecution, on May 12, 2010, to reveal the identities of the three intermediaries to the defense, once protection measures would be in place for each of them. In addition, the judges requested that the Office of the Prosecutor present some of its staff and intermediaries "321" and "316" to be questioned in court about their working methods on the ground. They found that the allegations against intermediary 143 did not merit calling him to testify in court but that his identity should nonetheless be revealed to Lubanga and his defense team.

On July 6, after a lengthy delay in implementing the protective measures for intermediary 143, and emerging information that he had changed his mind about what these should be, and despite the lack of such measures being in place for him, the judges ordered that his identity be disclosed in a limited manner. The prosecution was ordered to disclose the intermediary's name, but only to Lubanga, the defense team in The Hague, and an individual working on behalf of the defense in the DRC (known as a "resource person"). Disclosure was moreover ordered for the sole purpose of questioning another intermediary who is currently testifying. The judges determined that it was essential that the defense know the identity of intermediary 143 in order to be able to fully cross-examine the other intermediary, because they had had contact with each other.

At the end of the hearing on July 6, the prosecution indicated that it intended to appeal this decision and needed the five day delay provided in the ICC rules to do so. The chamber suspended its order overnight and said it would reconvene the next morning to reevaluate the issues.
On July 7, unpersuaded by the prosecution's arguments, the trial chamber once more ordered that the identity of intermediary 143 be immediately disclosed, notwithstanding the prosecution's stated intention to appeal. That day, prosecutors failed to execute the trial chamber's repeated orders to disclose the identity of intermediary 143. To explain this attitude, the prosecution said that intermediary 143's life may be at risk if his identity were revealed without protective measures in place.

5. What is the basis of the judges' decision that Lubanga cannot have a fair trial in these circumstances?
On July 7, 2010, in response to the court's third order to disclose the identitity of the intermediary to the defense, the prosecution filed an urgent motion for the judges to either extend the time limit for disclosure of his identity or, alternatively, to stay the proceedings while consultations with the court's witness protection experts (the Victims and Witnesses Unit) were ongoing about the security situation of the intermediary.
On July 8, the judges unanimously decided to stay the proceedings, but not for the reason put forward by the prosecution.
The judges found that the failure of the prosecution to reveal the identity of intermediary 143 prevented the defense team from effectively cross-examining the other intermediary who was currently testifying before the court.
Additionally, the judges found that the repeated refusal of the Office of the Prosecutor to implement the chamber's orders of July 7 constituted "an abuse of the process of the Court" and created a situation in which the "fair trial of the accused [was] no longer possible, and justice [could not] be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework."

6. Are the judges being insensitive to security risks faced by intermediaries?
The July 8 decision staying proceedings reveals a disagreement between the judges and the prosecution about the security situation of intermediary 143 and about the possible consequences of limited disclosure of his identity.
The prosecution claimed that it cannot implement the judges' order to disclose the identity of intermediary 143 because doing so puts the intermediary at risk of being killed. The prosecution stressed that "it has an independent statutory obligation to protect persons at risk on account of the Prosecution's actions. It should not comply, or be asked to comply, with an order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk."

In accordance with their responsibilities under the Rome Statute, ICC judges have routinely made decisions relating to the protection and security of witnesses, sources and intermediaries. In this instance, the judges have stressed that they are "alive to the potential risks to the intermediaries employed by the prosecution once their identities are revealed to the accused." The trial chamber decision of May 12, 2010 provided that the identity of the three concerned intermediaries would be revealed to the defense only once protective measures had been put in place for each of them. Protection measures were implemented for the two other intermediaries. Intermediary 143 initially agreed to the protective scheme proposed by the Victims and Witnesses Unit. But he changed his mind at the last minute, on July 6, 2010, just as the scheme was about to be implemented, and asked for additional guarantees.

The judges consulted again with the court's protection experts who informed them that, in their view, disclosure of intermediary 143's identity under the strict conditions the chamber had set would not endanger him. The judges then decided that Lubanga's right to a fair and expeditious trial compelled immediate disclosure even in the absence of protective measures. The prosecution disagreed with this assessment.

Difficult decisions and careful balancing of various interests are at play in this series of decisions.

7. What is the security situation in Bunia? Have there been threats to witnesses and intermediaries?
Human Rights Watch has no information about the identity of intermediary 143 or his personal security situation. Human Rights Watch has, however, documented some security threats in the Ituri district connected to the Lubanga trial, including threats that allegedly came from members of Lubanga's armed group. A number of Lubanga's supporters remain influential. Several human rights activists and journalists linked to the work of the ICC have reported death threats, intimidation and other forms of harassment. Some were compelled to leave Bunia and believe it is not yet safe for them to return. The court itself has recognized that those who have helped the ICC have done so in the face of substantial safety risks. To date, most witnesses in the Lubanga trial have benefited from some forms of protection measures. The appointment of Dieudonné Mbuna, a well known UPC leader, as resource person in the DRC for Lubanga's defense team has raised concerns. This may be one reason the prosecution is particularly cautious in this situation. However the judges have found that concerns expressed in court about Mbuna have not been substantiated thus far.

8. Do prosecutors regularly use intermediaries for investigations?
Intermediaries are individuals or organizations that facilitate victims and witnesses' cooperation with the ICC. Various organs and units of the court rely on intermediaries to assist in performing their tasks. The Office of the Prosecutor uses intermediaries to facilitate contacts between investigators and possible witnesses and to provide background information, among other things. The office has emphasized that intermediaries do not conduct investigations. In light of the difficult security situation in Ituri at the time investigations were conducted, intermediaries enabled ICC investigators to contact potential witnesses in a more discreet and secure manner.

Intermediaries perform essential tasks that contribute to enabling the court to successfully discharge its mandate. The ICC has been working for years to standardize its policy on intermediaries between the Office of the Prosecutor and the Registry and its various units. Current developments underscore the importance and urgency of that task. While different policies may be appropriate for different kinds of intermediaries, intermediaries like those at the center of the current developments in the Lubanga trial should be carefully selected, well trained - including with regard to ethical aspects of their tasks- and financially compensated for their work, as appropriate. They should also benefit from some measure of protection when their lives are put in danger directly because of work performed at the request of the ICC. The current impasse in the trial shows that, while intermediaries may be indispensable in the course of investigations, their use comes with challenges. An evaluation of current practices and policies in this regard is important, with a view to determining carefully under what circumstances and within what limits intermediaries should be used.

.... 11. What happens next? Is the Lubanga trial over?
The prosecutor has appealed the decision to stay the proceedings, on July 15, 2010.
In addition, in light of the Appeals Chamber's decision on the previous stay, it may be possible for the trial chamber itself to lift the stay, if the obstacles that led to its imposition can be overcome. The judges have already indicated that at least one of the two issues justifying their stay, namely the disclosure of the identity of intermediary 143, will likely be solved, as soon as protection measures acceptable to intermediary 143 are put in place. It is not clear what will be required to address the second source of impasse, that is, the prosecution's refusal to implement the chamber's orders. The judges have issued warnings to Prosecutor Luis Moreno Ocampo and Deputy Prosecutor Fatou Bensouda that they are considering sanctions about the prosecution's refusal to execute chambers' orders. ..."

III. RELATED NEWS ARTICLES

i. "ICC suspends DR Congo ex-militia chief's trial," AFP, 8 July 2010 http://www.google.com/hostednews/afp/article/ALeqM5gfUn7qh_UJu9y7PldfnNEK2XndHQ

"The defence claims that false evidence had been fabricated with the assistance of intermediaries used by the prosecutor to find witnesses, and that individuals were paid to give false testimony.
"We are satisfied with the chamber's decision that the prosecutor cannot hold himself above the judges," Lubanga's lawyer Catherine Mabille told AFP Thursday. ..."

ii. "ICC Orders Former Congolese Militia Leader's Release", Humanitarian News, 16 July 2010,
http://www.humanitariannews.org/20100716/icc-orders-former-congolese-militia-leaders-release

"A family member of former Congolese militia leader Thomas Lubanga said the family welcomes the news that Lubanga has been ordered released...

...The ICC in The Hague July 8 ordered the suspension of Lubanga's trial because prosecutors refused to give his defense lawyers the name of a person connected with the case...."

iii. "Prosecutor wants to stop Congolese militiaman's release, AFP, 16 Jul 2010, http://news.yahoo.com/s/afp/20100716/wl_africa_afp/warcrimesiccdrcongolubangatrial

"Prosecutors at the International Criminal Court on Friday appealed the court's order to free Congolese militia chief Thomas Lubanga after the suspension of his trial, the chief prosecutor said.

'A few minutes ago we appealed,' Luis Moreno-Ocampo told journalists in The Hague a day after the court ruled that Lubanga should be freed unless prosecutors mounted an appeal.

Moreno-Ocampo said he had asked for the appeal to have a suspensive effect on the order, which means that Lubanga would not be freed until appeals judges ruled otherwise.

... Moreno-Ocampo remained adamant Friday that he would not identify the intermediary as long as there were security concerns.

'The prosecution prefers to lose the case rather than to threaten the life of a person,' he said.

'As soon as protection is in place, we provide, disclose the name.' ..."

iv. "Media Buzz On Order To Release Lubanga," Wairagala Wakabi, Lubanga Trial website, 19 July 2010 http://www.lubangatrial.org/2010/07/16/media-buzz-on-order-to-release-lubanga/

"The order issued by judges yesterday for Congolese war crimes accused Thomas Lubanga to be released has received wide coverage online. Media from all continents have reported the story, as have bloggers, with many dwelling on the causes of the stay of proceedings and resultant order for Mr. Lubanga's release. Others sounded out parties to the trial, and yet some looked at the way forward was likely to be.

Judges on Thursday ruled that Mr. Lubanga - the first person tried at the International Criminal Court (ICC) should be released unconditionally if the prosecution did not appeal the release order within five days. The stay of proceedings which preceded the release order arose from the failure by the Office of The Prosecutor (OTP) to implement an order by judges to reveal the identity of an individual who helped prosecution investigators identify persons who testified against Mr. Lubanga. ..."

SEE ALSO:

v. "Court orders Congo rebel released," KBC/BBC, 16 July 2010, http://www.kbc.co.ke/story.asp?ID=65305

vi. "First ICC accused - DR Congo's Lubanga - 'to be freed'," BBC, 15 July 2010 http://www.bbc.co.uk/news/world-africa-10650399

vii. "Prosecutor appeals Lubanga ruling", Al Jazeera, 17 July 2010, http://english.aljazeera.net/news/europe/2010/07/2010716165741834856.html

viii. "ICC Orders Former Congolese Militia Leader's Release", James Butty, VOA News, 16 July 2010, http://www1.voanews.com/english/news/africa/Butty-DR-Congo-Lubanga-Release-Order-React-Dzbo-16july10-98582194.html

ix. "Judges Order Lubanga's Release", Wairagala Wakabi, Lubanga Trial website, 15 July 2010,
http://www.lubangatrial.org/2010/07/15/judges-order-lubanga’s-release/

x. "Lubanga Chronicle #93 Judges order the release of Thomas Lubanga", Aegis Trust, 15 July 2010, http://www.aegistrust.org/Lubanga-Chronicles/lubanga-chronicle-93-judges-order-the-release-of-thomas-lubanga.html

xi. "Netherlands: Friction in the Hague", Marlise Simons, NY Times, 15 July 2010,
http://www.nytimes.com/2010/07/16/world/europe/16briefs-Hague.html?_r=1

xii. "Court orders release of Congolese militia chief", CNN, 15 July 2010,
http://edition.cnn.com/2010/WORLD/africa/07/15/icc.militia.leader.release/?fbid=GnhK9vMVLVp

xiii. "ICC orders release of Congo militia leader Lubanga, pending appeal", Hillary Stemple, JURIST, 15 July 2010, http://jurist.org/paperchase/2010/07/icc-orders-release-of-congo-militia-leader-lubanga-pending-appeal.php

xiv. "ICC orders release of Thomas Lubanga", Thijs Bouwknegt, RNW, 15 July 2010, http://www.rnw.nl/english/article/icc-orders-release-thomas-lubanga-0

xv. "ICC says Thomas Lubanga should be freed", News on Africa, 19 July 2010, http://www.newsonafrica.com/archives/291

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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 fair, effective, and independent international organization. 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 the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.
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