Thomas Lubanga Dyilo’s personal secretary testified at the International Criminal Court (ICC) in The Hague, Netherlands, this week that Lubanga would never have approved the use or recruitment of child soldiers. The aide, Michel Angayika Baba, testified that he never saw minors in Lubanga’s bodyguard or entourage. This is consistent with the testimony of an earlier witness for Lubanga.
Also this week the defense again complained about late disclosure of documents. Failure to provide disclosures has been an ongoing issue in the case, once stopping the trial, and the subject of repeated orders by the court. The prosecution offered three documents this week, which the defense argued should have been disclosed earlier. The prosecution said one of the documents was simply a cleaner copy of an earlier document, two more “became relevant” because of the testimony of a defense witness. The prosecution’s determination of what is and what is not relevant and necessary to disclose had led the trial chamber to find last year that Lubanga could not get a fair trial, but that finding was reversed by the appeals chamber.
The prosecution’s position, that it must decide what material is relevant for disclosure has been troubling to some trial watchers and practitioners as well as to the trial chamber. The prosecution takes the position that much of was it has cannot be disclosed to the defense, but only used a basis to find new evidence since the information has come through diplomatic channels and must be private. This, of course, raises the question of whether or not the accused can be offered a fair trial if he cannot see the evidence against him or if potentially exculpatory evidence is being hidden, or ignored by the prosecution.
The question to be resolved is, do the rules provide an adequate protection of the accused? Rule 77 says:
Inspection of material in possession or control of the Prosecutor
The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute
and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and
other tangible objects in the possession or control of the Prosecutor, which are material to
the preparation of the defence or are intended for use by the Prosecutor as evidence for the
purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or
belonged to the person.
Part of the issue comes from the hybrid nature of the court. The court is both a civil law (European) and a common law (U.K./U.S) system. In a traditional civil law system the prosecution has a duty to fully investigate the case, including any exculpatory evidence before presenting the case to the court. In common law systems the adversarial nature of the process, with full disclosure for the parties is presumed to better serve the interests of justice. In a hybrid system, does the prosecutor have a greater duty to justice and full and fair investigation, or to build a case against the accused with the defense having an opportunity to present its own case? Can the defense adequately present its case without all the files available to the prosecution?
In the end, the answers to these question, provided, in part, by the Lubanga case will determine whether or not the ICC is credible. If the accused cannot get a fair trial, then what is the point of the court?
Lubanga is the first person to face trial in the ICC. He is alleged to have been using child soldiers in the Democratic Republic of Congo, (DRC). He was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.