Reparations Center for Victims of War Crimes

International Criminal Court Appeals Judge Akua Kuenyehia has removed herself from hearing the appeal of the trial court decision suspending the case against Thomas Lubanga of the Democratic Republic of the Congo.  Judge Kuenyehia sat on the pre-trial chamber that approved the warrant and initial indictment against Lubanga.  Another judge who has not been involved in the pre-trial or trial chamber decisions has been assigned to her seat on the Appeals Chamber.  The process is explained in the Open Society blog on the Lubange trial here.

Thomas Lubanga Dyilo is the first person to face trial at the International Criminal Court (ICC) in The Hague, The Netherlands for war crimes.  He is also the first person ever to have been charged with recruiting and using child soldiers as a war crime. Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of Congo.  He was brought before the ICC in 2007, his trial started in January 2009, the defense began its case in January 2010.

Last month, the trial chamber suspended the trial based on allegations that a prosecution investigator, identified as “Intermediary 143″  bought or otherwise influenced the testimony of defense witnesses.  The trial chamber ordered the prosecutor to identify “Intermediary 143″ and when the prosecution did not comply ordered the trial suspended and Lubanga released finding that the refusal to disclose the identity of the intermediary to the defense had denied Lubanga a fair trial on the charges.  The court in its order said:

Whilst these circumstances endure, the fair trial of the accused is no longer possible, and
justice cannot 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.

The Open Society Institute detailed the court’s decision here.

The prosecution has appealed the order suspending the case and the order directing Lubanga’s release on the grounds that he might flee and not return to the court if released from custody.

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has suspended proceedings in the trial of Thomas Lubanga Dyilo.  Lubanga was the first accused to appear before the court in 2007.  In January 2009, the trial began, in January 2010, the defense began presenting its case.  The defense has presented witnesses who claim the prosecution witnesses have claimed their identities, or that the prosecution witnesses were not in fact child soldiers. Lubanga is charged with war crimes, including; recruiting, conscripting and using child soldiers.  Lubanga was the reputed head of the Union of Congolese Patriots in the Democratic Republic of Congo.

One of the issues, detailed by the Open Society Institute blog here, is the prosecution’s refusal to identify and present its investigators.   The defense has claimed that the investigators have been involved in the stealing of defense witnesses identities.  The chamber has ordered the disclosure of the investigators identities, the prosecution has resisted providing those identities.  The court’s stay of the proceedings is to enforce its order for disclosure.

The court noted the problem from its point of view:

The Prosecutor, by his refusal to implement the orders of the
Chamber and in the filings set out above, has revealed that he does not
consider that he is bound to comply with judicial decisions that relate to a
fundamental aspect of trial proceedings, namely the protection of those who
have been affected by their interaction with the Court, in the sense that they
have had dealings with the prosecution. Essentially, for the issues covered by
Article 68 in this way, he appears to argue that the prosecution has autonomy
to comply with, or disregard, the orders of the Chamber, depending on its
interpretation of its responsibilities under the Rome Statute framework.

Later in the opinion the court noted:

No criminal court can operate on the basis that whenever it makes an order in
a particular area, it is for the Prosecutor to elect whether or not to implement
it, depending on his interpretation of his obligations. The judges, not the
Prosecutor, decide on protective measures during the trial, once the Chamber
is seized of the relevant issue, as regards victims, witnesses and others
affected by the work of the Court, and the prosecution cannot choose to ignore
its rulings.

The court concluded:

Therefore, the Prosecutor has elected to act unilaterally in the present
circumstances, and he declines to be “checked” by the Chamber. In these
overall circumstances, it is necessary to stay these proceedings as an abuse of
the process of the Court because of the material non-compliance with the
Chamber’s orders of 7 July 2010, and more generally, because of the
Prosecutor’s clearly evinced intention not to implement the Chamber’s orders
that are made in an Article 68 context, if he considers they conflict with his
interpretation of the prosecution’s other obligations. Whilst these
circumstances endure, the fair trial of the accused is no longer possible, and
justice cannot 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.

The court’s order has left open the question as to whether or not the case will be dismissed.  If a fair trial “is no longer possible” what is the remedy but dismissal or acquittal?  The court’s opinion is available here, and its press release is available here.