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
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.