International Criminal Court Gives Clearance for First Trial to Begin

By Katherine Iliopoulos

The International Criminal Court announced today that its first trial, which was put on hold because of the prosecutor's refusal to make evidence in his possession available to the defence, has been cleared to go ahead.  The trial is provisionally scheduled to commence on 26 January, 2009.

The beginning of the trial had been scheduled for 23 June, 2008, but on 13 June, 2008 the Court imposed a stay of proceedings.  The Court held that Lubanga, who faces charges of war crimes committed in the territory of the Democratic Republic of the Congo, was unable to receive a fair trial because the Prosecutor did not disclose a large amount of evidence relevant to Lubanga's defence. 

The Prosecutor, Luis Moreno-Ocampo, had gathered the items in question on the basis of confidentiality agreements with their providers, principally the United Nations.  According to Moreno-Ocampo, he was allowed to do this by the ICC Statute, where he intended to use the material not as evidence itself but to help him locate other evidence.  But the Court held that the prosecutor had abused a provision that was only intended for exceptional circumstances, and insisted that he should allow the Court to review the material and provide any potentially exculpatory evidence to the defence.

Since then, Moreno-Ocampo has received clearance from the organizations that provided the evidence to allow all of it to be reviewed by the ICC's judges, and much of it to be made available to the defence.  On October 14, he provided the ICC's Trial Chamber with "all the documents from all the information providers in non-redacted form henceforth and through the entirety of the trial for its review."  He also stated that 135 of the items could be provided directly and in full to the defence (out of a total of 228 items gathered). 

In the case of the remaining documents, Moreno-Ocampo said he had in many cases obtained consent for the defence to be given redacted versions of the documents.  In the few cases where the documents could not be shown to the defence, the prosecutor claimed that in any case it was already in possession of evidence that was analogous to the withheld items.

In other words, the prosecutor is now claiming that there is no potentially exculpatory evidence that will be withheld from the defence as a result of the confidentiality agreements he entered into, and he is offering all the material to the Court so it can assess his claim.

It seems that this solution meets the Court's requirements.  In allowing the trial to proceed, the Court said that the reasons for imposing the stay in June have now “fallen away”. The full reasoning will be explained in a written decision in due course.

Lubanga is the founder and leader of the political and military movement the Union des Patriotes Congolais (Union of Congolese Patriots) (UPC). He is charged with conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities in Ituri from September 2002 to August 2003. According to the United Nations Mission in the DRC (MONUC) the UPC included children aged between 10 and 16 equipped with Kalashnikov assault rifles.

Lubanga was taken into custody on 17 March 2006 after a warrant of arrest was issued by the Court at the request of the Prosecutor.

Related Links:

Stay of Proceedings in the Lubanga case is Lifted

International Criminal Court press release

November 18, 2008

Lubanga: The Case Continues

By Joshua Rozenberg

Telegraph.co.uk, November 19, 2008

Prosecution's Application For Trial Chamber to Review all the Undisclosed Evidence Obtained from Information Providers (pdf file)
October 14, 2008

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