Tag Archives: Thomas Lubanga

Thomas Lubanga Dyilo, first person tried, convicted and sentenced by the International Criminal Court.

Lubanga Disclosure Still an Issue

Trial Chamber I at the International Criminal Court (ICC) in The Hague has issued another decision in the ongoing battle over disclosures by the prosecution in the trial of  Thomas Lubanga Dyilo.  Lubanga’s trial commenced in January of 2009, the defense began its case in January 2010.  Testimony was to have been completed by now, but the chamber issued another decision on December 13, 2010 on disclosure.  The prosecution sought court approval for the names and evidence it has already withheld as “work product.”  The court did order the disclosure of some names and information previously withheld from the defense.

The prosecution had argued the notes of the investigators were not discoverable as they were work product.  The court previously issued a ruling evaluating the disclosure obligations of the Office of the Prosecutor in November, shortly after a ruling that prosecutor had violated its obligations.  In July, the trial chamber stayed the proceedings finding that a “fair trial … is no longer possible.” In October  the appeals chamber found that the trial chamber had not exhausted its power to sanction the prosecution for non-disclosure.  The fact that the prosecution did not disclose information it was ordered to disclose was not in dispute, the prosecution claimed it could not disclose the information because of its obligations to the governments and organizations that had provided the information.

The prosecution had been admonished by the trial chamber for failure to comply with disclosure orders in February 2010 for disclosures that should have been made “no later than December of 2009.”  The ongoing disclosure issues in this case highlight a conflict in the concept of the court and the obligations of the parties.  The Office of the Prosecutor is a semi-diplomatic office with obligations to the U.N. and nations which have provided information.  But in order to guarantee a fair trial it must also provide access to that information to the defense. The conflict has been that even when ordered by the court to disclose information, the prosecution argues that it’s diplomatic obligations prevent it from doing so.  Can the court offer fair trials without full disclosure?  The trial chamber has argued that it cannot but was overruled by the trial chamber with an eye towards greater sanctions on the prosecution.

Lubanga is the first case go to trial at the ICC.  He was brought before the court in 2006.  He is alleged to have been the leader of the Union of Congolese Patriots and is accused of conscripting and recruiting child soldiers in violation of the Geneva Conventions and the Rome Statute, the founding treaty of the ICC.  Lubanga is a citizen of the Democratic Republic of Congo.  The ICC has jurisdiction in the 114 nations that have ratified the Rome Treaty, or over their citizens who commit war crimes, crimes against humanity or genocide as defined by international law.

If there is a conviction in this case, the court could move on to the reparations phase where the victims of war crimes or crimes against humanity could seek orders of the court to make reparations from the funds of Lubanga, or from the trust fund for victims.  The ICC is the first international tribunal to offer a process for reparations and what form those reparations orders will take is still an open question.

ICC Rules on Disclosure Obligation of the Prosecution

Trial Chamber I of the International Criminal Court (ICC) has issued a ruling on the obligation of the prosecution to disclose information.  Trial Chamber I has been hearing the case against Thomas Lubanga Dyilo, the first ICC case to go to trial.  The Lubanga case has been stopped several times because of disputes over the disclosure of evidence in the possession of the prosecutor.   According to a post at the Open Society blog on the Lubanga trial, the issue came to light on March 5, 2010 when the defense noted to the court that the prosecution appeared to be cross-examining a defense witness based on undisclosed information.

It is clear in the Rome Statute, that the prosecution has a duty to disclose exculpatory information.  This ruling makes it clear the obligation is broader and the prosecution must disclose not just exculpatory information but information that may help explain the case, that may be used in cross examination and that “may otherwise be material to the preparation of the defence.”

While this clarification of the obligations may seem surprising to some in the Office of the Prosecutor, it is consistent with the spirit of the rules.  The obligation is based on the American Supreme Court case of Brady v. Maryland, which requires disclosure of exculpatory material or information that may lead to exculpatory material.  This obligation is ongoing.  Essentially, that appears to be the ruling of court.

The U.S. Department of Justice was involved in the drafting of the rules of the Rome Statute in the late 1990s.  Their input was to add an American style overlay to the system and require disclosure similar to that in U.S. federal court. The Office of the Prosecutor has adopted a more narrow approach, offering to disclose information they know to be exculpatory, or specifically requested by the defense.   The court seems to have broadened that understanding to include information that  “may significantly assist the accused in understanding the incriminating and exculpatory evidence, and the issues, in the case.”

This ruling makes the possibility of acquittal by the Trial Chamber seem more likely.  In June, the Trial Chamber suspended the proceedings finding that the prosecution’s failure to disclose the identity of a witness and the ongoing failure of the prosecution to disclose information as required meant that “a fair trial of the accused is no longer possible.”

If a fair trial was not possible because of the failure to meet disclosure obligations, and the prosecution has never met those obligations in the four years that Lubanga has been in The Hague, does this new ruling compel a finding of not guilty?

Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of the Congo, he is accused of the war crimes of conscripting and enlisting child soldiers.  Lubanga was the first defendant in the custody of the court, arriving in 2006, his trial began in January 2009 and the defense began presenting its case in January 2010. The trial is expected to conclude this month.

Judges Again Fault Office of the Prosecutor for Late Disclosure

Presiding Judge Adrian Fulford, hearing the case against Thomas Lubanga at the International Criminal Court, (ICC) has again raised concerns about the conduct of the prosecution in failing to identify a witness. The prosecution apparently had interviewed a witness, determined the testimony was not credible, but did not disclose the information to the defense.  The prosecutor has an affirmative duty to disclose exculpatory information to the defense.

The trial has previously been suspended for several months because of the non-disclosure to the defense. In giving the prosecution until Friday November  5 to make the disclosure, Judge Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,”

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He was brought to the court in 2006. Lubanga was the leader of the Union of Congolese Patriots (UPC), and is the first person to face trial at the ICC in The Hague, Netherlands.  Lubanga is accused of the war crimes of  using and conscripting child soldiers. The trial began in January 2009, the defense began presenting its case in January 2010.  The case has been delayed several times,  and just resumed after a lengthy delay when the trial court suspended the case over concerns that Lubanga could not get a fair trial because of the repeated refusal of the Office of the Prosecutor to disclose the identity of a prosecution investigator accused of bribing witnesses.  The other delays are recounted here. The appeals chamber determined that  the case could continue, and that the court could impose sanctions on the Office of the Prosecutor to induce compliance with the court’s orders.

Testimony in the case is expected to conclude this month.  The defense is to complete its written argument requesting dismissal of the case because of prosecutorial misconduct for not properly disclosing witnesses or complying with its obligations.

Lubanga Trial Resumes, Expected to End This Month.

The first trial at the International Criminal Court (ICC) in The Hague, Netherlands, is expected to wrap up this month.  The trial has been beset by various delays, claims of prosecutors withholding evidence and claims that agents of the prosecution had fabricated evidence.  The Open Society Institute Blog on the trial reports that the final witnesses are expected to testify by November 25.

Thomas Lubanga Dyilo was a leader of the Union of Congolese Patriots (UPC in French) in the Democratic Republic of the Congo.  He is the first person brought to trial at the ICC.  Lubanga is standing trial for war crimes for conscripting and enlisting child soldiers in the UPC.  Lubanga was brought to the court in May of 2006, his trial began in January of 2009, the defense began presenting its case in January 2010.   A full timeline of the trial through August is available here.

Lubanga’s trial has been stopped at various times because of the unavailability of witnesses including because of the volcanic eruption in Iceland, because of an ongoing fight about the prosecution’s duty to identify a witness and its ongoing refusal to do so, and because of deficiencies in translation and transcription,