Trial Chamber I Orders the Release of Thomas Lubanga

By | Published July 15, 2010

Trial Chamber I of the International Criminal Court (ICC) has ordered the release of Thomas Lubanga Dyilo, based on the court’s order last week to stay the proceedings.  That order, blogged about here, found that the prosecutions refusal to obey court orders to disclose the identity of witnesses to the defense prevented a fair trial of Mr. Lubanga.  The International Criminal Law Bureau reported on the release order here. The court had previously admonished the prosecution for late disclosure as described here.

The order of release will not take effect until the 5-day appeal period expires, if the prosecution files its appeal within five days, the detention may continue pending the resolution of the appeal.  The ICC press release, available here, states: “According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.”

Lubanga was the reputed leader of the Union of Congolese Patriots in the Democratic Republic of Congo.  He is charged with war crimes including the conscripting and using of child soldiers.  Lubanga was the first person to be brought before the court and made his first appearance in 2007.  His trial commenced in The Hague in January, 2009, and the defense began presenting its case in January, 2010. The Lubanga trial has previously been suspended several times, twice  for transcription errors, for the appeals chamber to consider adding additional charges, and for the prosecution to comply with disclosure orders.  It appears the court has no intention of lifting the current stay.

The other case currently in trial, Germain Katanga, and Matthieu Ngdolo,Chui also from the Democratic Republic of Congo has not been stayed.  It is not clear what effect the ruling will have on that case, or on the other case awaiting trial, Jean-Pierre Bemba Gombo from the Central African Republic.

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Lubanga Trial Suspended Again

By | Published July 8, 2010

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.

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Lubanga Defense Claims Witnesses Stole Identities

By | Published May 10, 2010

The defense team for Thomas Lubanga at the International Criminal Court (ICC) has claimed that a witness testified under a false name.  The witness, who testified as Dieudonné Tonyfwa Urochi, and is participating in the case as both a witness for the prosecution and as a victim seeking reparations before the court.  The testimony, report by the Open Society Institute’s blog on the trial here, goes to the credibility of the prosecution’s case.

In attempting to call the prosecution’s witness, the defense offered the testimony of a witness who stated that he is the father of Dieudonné Tonyfwa Urochi who was not a soldier in the Union of Congolese Patriots, (UPC) and is not the person who testified before the court. The defense witness was cross-examined by the counsel for the victim, as well as by the office of the prosecutor.

The counsel for Dieudonné Tonyfwa Urochi showed the witness a picture of the person who testified under that name and the witness insisted that was not his son.  Much of the testimony was continued in close session.

Thomas Lubanga Dyilo is the first person to be brought to trial in the ICC, which is located in The Hague, The Netherlands.  Lubanga was brought before the court in 2007, the trial commenced in January 2009, the defense case began in January 2010.  Lubanga was the leader of the UPC in the Democratic Republic of Congo and is on trial for the war crime of recruiting and conscripting child soldiers.

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Lubanga Defense Again Raises Concerns About Translation Errors

By | Published May 4, 2010

Thomas Lubanga Dyilo’s defense team again raised concerns about the accuracy of the translations and transcripts of the proceedings.  Defense counsel Catherine Mabile reported to the chamber that the defense had found “extremely important discrepancies” in the testimony of some witnesses.  It is unclear what the discrepancies were.  The Open Society Institute blogged the report here. The trial was previously stopped because of reported errors in translation and transcription which was blogged here, and by the Open Society Institute blog here.

The official languages of the International Criminal Court are English and French and all proceedings are simultaneously translated and transcribed in both languages.  Both transcripts are intended to be authoritative records of the trial proceedings.  Witnesses often testify in a third language so the possibility for errors and for entirely different translations of the testimony effects the quality of the record.

Thomas Lubanga is the first accused to come to trial in the International Criminal Court (ICC).  Lubanga was brought to the court in 2007, his trial commenced in January 2009.  The defense began to present its case in January 2010.  Lubanga was the leader of the Union of Congolese Patriots (UPC in French) in the Democratic Republic of Congo (DRC) and is accused of the war crime of recruiting, conscripting and using child soldiers.  The defense has contested the evidence that soldiers were younger than 15 at the time they joined the UPC and have asserted that some of the witnesses were not in fact in the UPC.

The ICC was created by the Treaty of Rome, and became effective when 60 nations ratified that treaty in July 2002.  The ICC has jurisdiction over crimes occurring after that date within the countries that have ratified the treaty or by nationals of countries that have ratified the treaty. The ICC can assert jurisdiction over cases when national authorities cannot or will not prosecute.  The ICC has investigations open in the DRC, Uganda, the Central African Republic, and has opened an investigation into the post-election violence in Kenya.  In addition to those nations which have signed the treaty, the ICC has an active investigation and indictments against three persons regarding Darfur, Sudan.  The Darfur situation was referred to the court by the Security Council of the United Nations and is different from the other cases because Sudan is not a signatory to the Treaty of Rome.  The ICC is seated in The Hague, The Netherlands.

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Lubanga Prosecutor Offers Evidence of the Age of Child Soldiers

By | Published April 18, 2010

The Office of the Prosecutor in the Thomas Lubanga Case has offered additional evidence that the witnesses who testified in the prosecution case were child soldiers.  The defense had offered evidence that at least some of the witnesses were not young enough to be considered child soldiers under international law, and that others were not in fact soldiers.  The submission, reported here by the Open Society Institute, was made during a recess in the trial.

Thomas Lubanga Dyilo was the first person brought to the International Criminal Court (ICC) to face indictment.  He arrived in The Hague in 2007, and the trial commenced in January 2009.  In January 2010, the defense began to present its case.  The case recessed in March, for further investigation by the defense and is scheduled to resume later this week.

Lubanga is charged with crimes in the civil war in the Democratic Republic of Congo (DRC).  Lubanga is alleged to have used child soldiers and to have conscripted child soldiers in his rebel army.  Child soldiers are defined by the Rome Statute, the founding document of the ICC, as those under 15 years of age.  The medical evidence the prosecutor is offering claims the witnesses may have been as young as 10 or 11 at the time they were drafted into Lubanga’s army,  the Union of Congolese Patriots, (UPC).

The prosecution is asking the court for leave to offer certificates as to the age of the contested witnesses.  These certificates are based on the testimony of prosecution witnesses who testified in May 2009.  It is being offered during the defense case, instead of as rebuttal, though it is not clear why they did not seek to admit the evidence in May, or why they would not wait and offer it as rebuttal evidence after the close of the defense case.

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Lubanga Trial Takes Two Week Break

By | Published February 21, 2010

The International Criminal Court trial of Thomas Lubanga Dyilo was suspended this week for a two week trip for the defense to the Democratic Republic of Congo for important “research,” presumably this means further investigation into the previous allegations that prosecution witnesses lied  or were paid to lie about being child soldiers.  The trial was earlier suspended on Tuesday because of noted differences in the official English and French transcripts.  The reporting from the Open Society Institute, available here, does not make clear whether or not the court had arrived at a resolution of the transcription problem.

The court also ruled that the Lubanga defense could share information on its investigation with the defense team of Germain Katanga, whose trial, along with co-defendant Matthieu Ngdolo Chui was the second trial to start at the ICC. The trial opened on November 26, 2009, and my summary of the case and its opening is available here. Lubanga is the first person to face a trial at the ICC.  Lubanga, Katanga, and Chui were rebel leaders in the Democratic Republic of Congo, and are charged with war crimes, and crimes against humanity.  There are four witnesses who are scheduled to testify for the prosecution in both cases, and the defenses wished to share the information they had collected in their investigations.  Judge Adrian Fulford ruled there was nothing to prevent such sharing between the teams.

Lubanga is accused of using child soldiers in his Union of Congolese Patriots, and Katanga and Chui are charged with  using child soldiers, attacking civilian targets, destruction of property, rape and sexual slavery as war crimes, they are also alleged to have committed crimes against humanity, including murder within the court’s jurisdiction, rape and sexual slavery. Another accused from the DRC, Bosco Ntaganda is still at large.

In the cases of the Sudan, one accused, Bahar Idriss Abu Garda voluntarily appeared at the court, and the charges against him were not confirmed.  A summary of that action is available here.  Three more accused from Sudan remain at large.  In the Uganda case there are four accused, all of whom are still at large.  In the case involving the Central African Republic, there is one accused, Jean-Pierre Gemba, whose trial is expected to begin April 27, 2010.

The International Criminal Court sits in The Hague, Netherlands and is intended to be a permanent court to hear cases of war crimes, crimes against humanity, and genocide when those cases are not resolved by national authorities.  Thomas Lubanga was the first person brought before the court, he was arrested in 2007, and his trial began in January 2009, the defense began presenting its case in January 2010.  There are also victims who have been given a limited right to participate in the case, and then to seek reparations if they can establish their right to do so.

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Lubanga Defense Described as “Witnesses Lied, Lubanga Not Guilty”

By | Published February 13, 2010

The Open Society Institute offered its summary of the Lubanga defense on its Lubangatrial.org website, boiling down the arguments to “witnesses lied, Lubanga not guilty.” The website’s summary, and unofficial transcript of the opening argument of Catherine Mabille, defense counsel for Thomas Lubanga is available here.  Catherine Mabille is a Paris-based lawyer and argued in French, this appears to be a transcription of the translation, though is not the court’s official transcript.

In the time that the defense has been offering witnesses, since this opening statement they have had one witness testify that he was paid $200 to lie and state that he had been a child soldier in Lubanga’s Union of Congolese Patriots (UPC) army, a rebel force in the Democratic Republic of Congo.  When asked if he had been paid to lie on behalf of the UPC, the witness claimed he asked for money from the UPC, but they would not give it to him.

Another witness testified that his son lied about being a child soldier in the UPC. A third witness testified over three days that he children were not conscripted into the UPC, but also testified that some joined willingly, which would seem to harm at least part of Lubanga’s  case.

The testimony that parties working on behalf of the ICC brought a question to the Office of the Prosecutor from Judge Adrian Fulford, who demanded to know if the prosecutor was going to produce the people who were alleged to have paid for false testimony.  Fulford said “Are we going to hear from them?  If so, when?”  The judge apparently suggested that the court might have a difficult time rejecting the testimony of witness bribery without hearing from the people who are alleged to have bribed witnesses.  The OSI’s summary is available here.

Thomas Lubanga Dyilo is the first defendant to face trial at the International Criminal Court for war crimes.  Lubanga is accused of conscripting, enlisting and using child soldiers in his UPC army.  Lubanga was brought to the court in May 2007, his trial began in January of 2009.  The defense began presenting its case in January 2010, after a few victims testified on their own behalf seeking reparations.   The court is intended to be a permanent place to prosecute charges of war crimes, crimes against humanity and genocide.

The court has a unique feature, never seen in international law before, allowing the victims of war crimes to seek reparations from a fund supported by the state’s parties who fund the court, charitable donations and the fines and fees paid by those convicted.  Reparations may include financial support, psychological and physical rehabilitation services.  The reparations process also includes the appointment of counsel funded by the court to represent the victims in pursuing their claims.

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Lubanga Defense Witness Testifies for Third Day at the ICC

By | Published February 11, 2010

Lubanga defense witness Claude Nyeki Django testified for the third day that Thomas Lubanga’s Union of Congolese Patriots (UPC) did not draft child soldiers.  The proceeding stopped for a time because Django broke down on the stand for a second time.  After meeting with a psychologist from the Victims and Witness Unit  (VWU) of the International Criminal Court (ICC), Django continued his testimony.  Curiously, Django said children voluntarily joined Lubanga’s army, which may not be a very good defense.  The public portions of Django’s testmony are recounted on Day One, Day Two and Day Three of his testimony.

Django’s testimony is essentially that he never served in the UPC, and was never in the armed forces at all, but was lured into a group who claimed that he had been a child soldier and he was portrayed as such by this group.

Thomas Lubanga Dyilo was the leader of the UPC in the Democratic Republic of the Congo.  He was brought before the court in 2007, and is the first person to face trial at the ICC.  Lubanga’s trial commenced in January of 2009 and the defense began presenting its case in January 2010.  Lubanga is accused of conscripting, enlisting, and using child soldiers, which is a war crime.  This witnesses testimony appears directed at the idea of cosncripting child soldiers, though he appears to admit there were child soldiers present to his knowledge, which would appear bad for Lubanga on the charges of enlisting and using child soldiers.

The court sits as a three judge panel, who will have to determine at the close of the case if the Office of the Prosecutor has proved its case beyond a reasonable doubt.  If they make a finding of guilt the trial will then move on to a reparations phase where the victims who have been granted leave to participate in the case will have an opportunity to seek reparations from the victims fund and from any assets of Lubanga’s.  The ICC is permanent court seated in The Hague, Netherlands to hear accusations of war crimes, crimes against humanity and genocide, where the crimes are not likely or capable of being prosecuted by national authorities.

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Prosecutors Admonished for Late Disclosure in Lubanga Case

By | Published February 6, 2010

Judge Adrian Fulford, lead judge on the three judge panel sitting at the International Criminal Court to hear the case against Thomas Lubanga inquired of the prosecutors why they were late in disclosing evidence to the defense.  The defense complained that the late disclosure of information relating to their witnesses just before the witnesses were to be called made preparing the direct of the testimony difficult.

The prosecution apparently had information relating to the witnesses and other witness that was not disclosed until last week.  Judge Fulford said the information should have been disclosed by December of 2009 “if not substantially earlier.”  A full report of the case is available here.  The size and complexity of these cases make them difficult for both sides.  The prosecution has an advantage in staff and information. There is a great deal of information and a number of sources to keep track of as the investigations progress.  The trial in this case started in January 2009, Lubanga was brought before the court in 2007 and has been in custody since then.

Lubanga is the first person to go on trial at the International Criminal Court. Lubanga is accused of using child soldiers in his rebel army in the Democratic Republic of Congo.

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Lubanga Defense Witness Claims Son Lied To ICC

By | Published February 6, 2010

A witness called by the defense testified that his son, who appeared as a prosecution witness lied to the court when he testified about being a child soldier in Thomas Lubanga’s army.  Lubanga is the first person to face trial at the International Criminal Court.  Lubanga, from the Democratic Republic of Congo is accused of using child soldier in his rebel army.  Lubanga was brought to the court in 2007, his trial began in January 2009, in January of 2010, the defense began presenting its case.  Lubanga was the head of the Union of Conoglese Patriots (UPC in French).

A detailed account of the day’s testimony is available here. The prosecutor cross examined the man arguing that because he did not report the allegedly false testimony to the police or ICC officials that he may not be telling the truth about his son’s testimony.

There is one other case in trial at the International Criminal Court, also from the Democratic Republic of Congo.  There is one defendant before the court from Sudan, and one from the Central African Republic.  The five accused from Uganda have not been brought before the court.  There are three accused from the Sudan with open arrest warrants who have not yet been brought to the court.  There is one accused from the Democratic Republic of the Congo who is still at large.

Situations before the ICC can be referred by the state parties who have signed on to the treaty establishing the court or by the United Nations Security Council.  The court is intended to be permanent and to investigate and prosecute war crimes, crimes against humanity and genocide that are not prosecuted under any national authority.

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