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.