Court Establishes Reparations Process

By | Published August 13, 2012

Trial Chamber I of the International Criminal Court (ICC) has issued a 94 page decision describing the process for victims to collect reparations. The order, issued following the decision to sentence Thomas Lubanga Dyilo to 14 years imprisonment after having been found guilty of war crimes and crimes against humanity as leader of the Union of Congolese Patriots for conscripting and using child soldiers in his rebel army in the Democratic Republic of Congo.

The court ordered that most of the processing of claims be delegated to the Trust Fund for Victims which welcomed its new role in a statement. The trust fund reports that it has €1.2 million in its fund for reparations, and that 85 victims have made application for reparations in the Lubanga case and more than 8,000 victims overall.  All applications are to be turned over to the trust fund, though the court will maintain oversight and approve the details.  The court described “five step process:”

First, the TFV, the Registry, the OPCV and the experts, should establish which
localities ought to be involved in the reparations process in the present case
(focusing particularly on the places referred to in the Judgment and especially
where the crimes committed).  Although the Chamber referred in the Article
74 Decision to several particular localities, the reparations programme is not
limited to those that were mentioned. Second, there should be a process of
consultation in the localities that are identified. Third, an assessment of harm
should be carried out during this consultation phase by the team of experts.
Fourth, public debates should be held in each locality in order to explain the
reparations principles and procedures, and to address the victims’
expectations. The final step is the collection of proposals for collective
reparations that are to be developed in each locality, which are then to be
presented to the Chamber for its approval.

The American Non-Governmental Organizations Coalition for the International Criminal Court, (AMICC) reviewed and discussed the decision here, noting:

The Chamber noted that since Thomas Lubanga was found to be indigent, reparations will be financed by the Trust Fund for Victims, which tends towards collective reparation

Suggestions by victims and victims groups about the form reparations should take seemed to fall into three categories: reparations to empower victims economically and to stimulate local economic development, reparations to help heal the physical and mental health of victims, and symbolically (sic) reparations like a memorial.

The Trust Fund for Victims welcomed its substantial role in the reparations process and hailed the decision as “a historic milestone for victims of international crimes.” The Fund was set up by the ICC’s governing body, the Assembly of State’s Parties (ASP) in 2002 and currently has a total income of $5.5 million. $2.7 million has been set aside for grants in the DRC and Uganda.

Although the Chamber’s decision is not binding on future cases, the principles and procedures set out may be used by future Trial Chambers where they are practicable. It is possible that in a future case, where a defendant has means, a Trial Chamber may order individual reparations, or a combination of individual and collective reparations.

It appears from the decision that the direction of the court is to order collective rather than individual reparations. If the test is whether or not a convicted party has the means to make whole the victims of the kind of mass atrocities that would come before the court, then it is hard to imagine the defendant with the resources to make to make whole hundreds or thousands of victims after having spent some time in pre-trial detention, trial and appeal.

Lubanga was the first person to be tried, convicted and sentenced by the court, as previously described on this blog:

 Lubanga was brought to the court in May of 2006, his trial began in January 2009.  The defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of charges at the request of victims, and for other reasons throughout the trial, failure to disclose evidence by the prosecution, transcription and translation errors, and other issues.  The case was submitted to the court after closing arguments in August 2011.

At one point, the trial chamber ordered Lubanga released, finding that he could not have a fair trial because of the failure of the prosecution to disclose evidence and comply with court orders.  That decision was overturned by the appeals chamber and the trial resumed.

 

Court Video on the Reparations Decision (In French).

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Lubanga Sentenced to 14 Years

By | Published July 10, 2012

Schevingen Prison in The Hague, Netherlands, where prisoners spend pre-trial detention.

 

Thomas Lubanga Dyilo, the first accused brought to the International Criminal Court, has been sentenced to 14 years imprisonment for the war crimes of recruiting, conscripting and enlisting child soldiers in his rebel army in the Democratic Republic of Congo, the Union of Congolese Patriots.  The court announced the guilty verdict in March.

As previously blogged here:

Lubanga was the first accused brought into the custody of court. Lubanga was brought to the court in May of 2006, his trial began in January 2009.  The defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of charges at the request of victims, and for other reasons throughout the trial, failure to disclose evidence by the prosecution, transcription and translation errors, and other issues.  The case was submitted to the court after closing arguments in August 2011.

At one point, the trial chamber ordered Lubanga released, finding that he could not have a fair trial because of the failure of the prosecution to disclose evidence and comply with court orders.  That decision was overturned by the appeals chamber and the trial resumed.

As pointed out in the BBC report, Lubanga has been in the custody of the court for more than 6 years, and so would have something less than eight years to serve.   The prosecution and defense now have 30 days to appeal the verdict and the sentencing order.  It is not clear when the victim’s reparations process will begin, presumably after the resolution of any appeals.

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Lubanga Found Guilty

By | Published March 14, 2012

By Jvhertum (Own work) [Public domain], via Wikimedia Commons

Schevenigen Prison in the Netherlands where ICC prisoners spend pretrial detention.


Trial Chamber I of the International Criminal Court (ICC) today announced a guilty verdict for Thomas Lubanga Dyillo in his war crimes trial in The Hague.  Lubanga was accused of recruiting and conscripting child soldiers as the leader of the Union of Congolese Patriots, (UPC) in the Democratic Republic of Congo (DRC).

According to the Lubanga Trial blog:

The ICC judges ruled that the prosecution proved beyond reasonable doubt that Lubanga is guilty of the crimes charged. Judge Adrian Fulford, Presiding Judge of the Trial Chamber, in delivering the verdict said that there was reasonable evidence to believe that Lubanga was involved in a recruitment drive for his UPC rebel group and that such drive included conscripting children and using them for combat purposes. The judges also found that Lubanga personally used children as his bodyguards.

Lubanga was the first accused brought into the custody of court. Lubanga was brought to the court in May of 2006, his trial began in January 2009.  The defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of charges at the request of victims, and for other reasons throughout the trial, failure to disclose evidence by the prosecution, transcription and translation errors, and other issues.  The case was submitted to the court after closing arguments in August 2011.

At one point, the trial chamber ordered Lubanga released, finding that he could not have a fair trial because of the failure of the prosecution to disclose evidence and comply with court orders.  That decision was overturned by the appeals chamber and the trial resumed.

The defense has a right to appeal the verdict to the appeals chamber.  Now that there is a verdict, the court may also begin the reparations phase and determine the appropriate amount and form of reparations to the victims recognized and allowed to participate in the case.

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Lubanga Trial Closes Evidence Phase

By | Published April 21, 2011

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has declared a closed the evidentiary phase of the trial of Thomas Lubanga Dyilo. The court had previously announced the schedule for closing arguments, previously discussed here, which Judge Adrian Fulford announced will not be changed. “The clock has started ticking and nothing save an earthquake will stop it,” The Lubangatrial.org blog reports him as saying.

Thomas Lubanga Dyilo is the first person to face the International Criminal Court. He is accused of the war crimes of recruiting, using and conscripting child soldiers.  He was brought to the court in 2006, and his trial began in January of 2009.  The defense began presenting it’s case in January 2010.  The case stopped several times because of the prosecution cross examining witnesses with information that had not been disclosed to the defense.  At one point, the trial chamber issued a stay, finding that Lubanga could not get a fair trial, the appeals chamber reversed, but disclosure of evidence has continued to be an issue. The trial chamber again recently ruled on the disclosure problems and denied another defense request to end the trial because of the disclosure issues.

The questions raised by the ongoing disclosure issues were discussed in part, here.  Ultimately, the attitude and actions of the prosecutor in timely and properly disclosing evidence will determine whether or not an accused may get a fair trial at the court.  That, and the court’s reaction to the prosecution’s failure to comply with rules and court orders will determine the credibility of the court.  The court has been much in the news lately, which has added to American awareness of its existence.  It’s continued existence will require credibility in fair trials for the accused followed fair treatment of the victims in the reparations process when there is a conviction.

 

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Lubanga Closing Scheduled

By | Published April 13, 2011

Although testimony is still being taken, Trial Chamber I of the International Criminal Court (ICC) has set out a timetable for the closing arguments in the trial of Thomas Lubanga Dyilo.  The order states that the prosecution and the victims should go first and must make their submissions by June 1, 2011. Although it is common to have simultaneous submissions, the court ordered the prosecution to submit its argument first:

In light of the legal and factual developments since the commencement of the trial, which led, inter alia, to the most recent defence application for a stay of the proceedings based on an abuse of the process by the prosecution, the Chamber is of the view that it is necessary for the Prosecutor to file his written closing statement first. The accused is entitled to know, once the evidence has closed, the legal and factual basis on which the Prosecutor maintains he is guilty. In this particular case, the lack of clearly identified bases could, potentially, result in the defence responding to evidence that is no longer relied on. In the circumstances, the logic underlying Rule 141(2) of the Rules that  establishes the right of the defence to examine witnesses last also applies to these final written submissions. The defence is therefore entitled to file
its closing submissions once the arguments of the prosecution and the legal representatives have been submitted.

The prosecution’s closing argument is to be no more than 250 pages long and the victim’s submissions to be no more than 50 pages long for each team.  The defense has until July 15, 2011 to file a response of up to 300 pages.  The prosecution than can file a response on August 1, the defense has until August 15 to file a rebuttal to the prosecutor argument.  On August 25 and 26 the court will hear oral arguments about the case from the prosecution and defense as well as the victim’s legal teams and the Office of Public Counsel for Victims.

The chamber directed the parties to address the following issues in their closings:

i) Whether there was an armed conflict in Ituri, Democratic Republic of
Congo, between 1 September 2002 and 13 August 2003?
ii) If there was an armed conflict for the purposes of i) above, is there a
nexus between the armed conflict and the alleged crimes?
iii) Was the armed conflict of an international character or not of an
international character, for the purposes of Article 8 of the Statute?

iv) If the Chamber concludes that it was not of an international character,
what factors should be taken into account if the Chamber considers
modifying the legal characterisation of the facts (under Regulation 55)
for the period of early September 2002 to 2 June 2003?
v) What does the prosecution need to establish in this case under Article
25(3)(a) of the Statute?
vi) What is the meaning of the terms “conscripting” or “enlisting”
children under the age of fifteen years into the national armed forces,
into armed forces or armed groups or “using them to actively
participate in hostilities”, for the purposes of Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) and the corresponding Elements of the Crimes?
vii) What does the prosecution need to establish under Article 30 of the
Statute, bearing in mind Article 8(2)(b)(xxvi)(3) and Article
8(2)(e)(vii)(3) of the Elements of Crimes?

Apparent in the order is the concern that the court has not resolved for itself whether the discovery violations which were complained about recently, stopped the trial last summer, and have been at issue a number of times in the case, have deprived Lubanga of a fair trial.

Lubanga is the first person to face trial in the ICC.  He was brought to The Hague in 2006, his trial began in January 2009, the defense case began in January 2010.  He is accused of war crimes including conscripting and using child soldiers as leader of the Union of Congolese Patriots in the Democratic Republic of Congo.

At the ICC, victims are allowed to participate to a limited extent in the trial, including motions and commenting on evidence.  The victims may also seek an order for reparations from the court if there is a conviction.

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Lubanga Trial Chamber Issues Written Order Denying Stay

By | Published March 31, 2011

Trial Chamber I of the International Criminal Court (ICC) issued an order denying a defense request for a stay of the proceedings of the trial of Thomas Lubanga Dyilo on March 7, 2011. The court has ordered the trial to resume, which it since has, as described here.

The order describes a number of instances where the prosecution used intermediaries whose reliability it had reason to doubt, but did not pass the information that the were credibility concerns on to the court or the defense.  The court summarized some of the concerns in this paragraph:

By way of summary, therefore, it is argued that although from a range of
materials Intermediary 316 was clearly to be suspected of providing false
information or eliciting false evidence, the Office of the Prosecutor chose to
continue working with him until at least April 2008, avoiding investigating
the reliability of the material he provided or alerting the Chamber to the
potential difficulties.

Intermediary 316 allegedly convinced at least one witness, witness 16 to falsely claim that he served as a child soldier in Lubanga’s army. Further, Intermediary 316 falsely claimed that his assistant had been murdered and the murderers were out to get him.  When it was found that the assistant was not dead, and other parts of his story of death threats could not be verified, the prosecution continued to use the services of Intermediary 316.  Reports indicated that there were concerns in the Office of the prosecutor about the reliability of his information, but this was not disclosed to the defense or the court, and the OTP continued to use his information.

In addition, the defence alleges that the prosecution was aware that Intermediary 316 was passing false information to the prosecution. It is suggested that internal reports that reached the highest level of the Office of the Prosecutor revealed that Intermediary 316 had lied to the investigators regarding the situation of three potential former FNI child soldiers. The
investigators noted that one of the child soldiers introduced by Intermediary 316 appeared to have been coached. It is said that this was left uninvestigated.322 Moreover, two emails sent by Witness 583 to his superiors in May 2006 set out the doubts that were expressed about expenditure allegedly incurred by Intermediary 316. In an investigator’s note dated 18
June 2010 it is suggested that Intermediary 316 had little credibility as regards events that occurred between 2006 and 2009. When Intermediary 316 was questioned by the Office of the Prosecutor in May 2008, he admitted to having lied, and having persuaded someone else to lie, to the investigators in order to obtain money to meet a personal debt. In October
2008, Intermediary 316 informed the prosecution that his assistant (Witness 183) had been murdered and that his killers were seeking him. He repeated this claim when he was questioned on this again in October 2009 and in November 2010. However, the Prosecutor accepts that Witness 183 is alive. Finally, in May 2008 the Office of the Prosecutor decided not to refer Intermediary 316 to the VWU because the threats he had alleged had not been established, and his family had provided varying accounts of the same events.

The chamber noted similar concerns about the work of another intermediary:

Intermediary 321 encouraged young
boys from [REDACTED] to make false claims to investigators from the
Office of the Prosecutor that they had been enlisted by the armed wing of
the UPC (including Witness 213, Witness 294, Witness 297 and Witness 298,
who each gave evidence). Defence Witness 4 maintained that
Intermediary 321 asked him and others to give a false story to the
prosecution that he had been enlisted in the UPC, and he was promised
assistance, training and money. He said the lies included their names, where
they lived and their ages. He gave evidence that he was coached in his false
account by Intermediary 321, over a number of days.

The defense also raised concerns about the evidence gathered by Intermediary 31:

Intermediary 31 acted as the intermediary for a number of witnesses, and it
is said that he was employed in that general role between 2005 and (at least)
2008. The defence submits that there is reason to suggest that he encouraged
potential witnesses to provide false evidence. The defence refers to events in
February 2006 when concerns were raised as to his credibility and dealings
with him were suspended (it is said the executive committee of the Office of
the Prosecutor was alerted to this turn of events). The defence relies on
evidence concerning his remuneration. Overall, the defence argues that his
employment with the prosecution should have been terminated and any
evidence gathered by him required thorough investigation; instead, it is
averred his services continued to be used and he was called to give
evidence.

The court found that despite repeated violations of disclosure obligation and the possible fabrications of evidence by the intermediaries:

The Chamber is of the view that this is not a situation in which alleged prosecutorial misconduct has disabled the accused from properly defending himself. The Chamber has responded comprehensively to the defence submissions so as to ensure that the totality of the available evidence on the relevant intermediaries is explored during the trial. Four intermediaries have been called to give evidence; the investigators who were principally responsible for each of them have testified; and the prosecution has indicated that it has effected disclosure of all relevant materials, following various rulings by the Chamber. Reverting, therefore, to the question posed by the Chamber in paragraph 166 above, the Chamber is unpersuaded, in these circumstances, that “the accused’s rights have been breached to the extent that a fair trial has been rendered impossible”.

The court found that it is not odius or repugnant to justice to continue the trial of Lubanga under the circumstances, as the court can choose to overlook the unreliable evidence in reaching its determination:

Contrary to the submission of the defence, the Chamber will be able, in
due course, to reach final conclusions on the alleged impact of the
involvement of the intermediaries on the evidence in this case, as well as on
the wider alleged prosecutorial misconduct or negligence based on the
suggested failure by the Office of the Prosecutor to supervise or control the
individual intermediaries and to act on indications of unreliability (together
with the consequences of any adverse findings in this regard, which the
defence alleges taints all the prosecution’s evidence).

The court continued, later in the 92 page opinion:

Even taking the accused’s submissions at their highest, the suggested failure
to check and investigate the statements of the prosecution’s witnesses, and
any other relevant evidence in the Prosecutor’s possession, or to reveal the
alleged weaknesses in the accounts of Intermediary 316 and Witness 157,
cannot properly be characterised as “illegal conduct” of a kind that would
make it “repugnant” or “odious” to continue the trial of the accused.
Similarly, the suggested breaches of the accused’s rights under Article
54(l)(a) and (b) of the Statute would not constitute such a serious violation
of the statutory safeguards as to make his trial ipso facto unfair. The
Chamber is persuaded that it will be jable, at the end of the case, to review in
detail the instances in which it is suggested the prosecution failed in its duty
to ensure that it was submitting reliable evidence. If the Chamber concludes
that this occurred in any of the instances relied on by the defence, the
appropriate remedy will lie in the Court’s approach to the evidence in
question, and particularly the extent to which it is to be relied on. A failure
to ensure that the Chamber has received reliable evidence, especially when
the prosecution was on notice that significant doubts existed in relation to
material in question, may affect the Chamber’s conclusions on the relevant
area or issue. On the facts advanced by the defence on this issue, the
suggested failings on the part of the prosecution – including the suggestion
that on occasion the Prosecutor deliberately avoided the process of
verification – are not so egregious as to necessitate the termination of the
trial.

The trial has, since the issuance of this order, resumed. It is not clear how much longer the trial might last at this point. Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of Congo (DRC) and is alleged to have used child soldiers in his army.  Lubanga is the first person to face war crimes charges in the ICC.  His trial began in January 2009, and he has been in The Hague since 2006.

 

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Lubanga Trial Resumes, Again

By | Published March 31, 2011

The trial of Thomas Lubanga Dyilo resumed this week after a four month break to consider renewed motions to dismiss.  The defense is now presenting its case and offered testimony that Lubanga had ordered the demobilization of child soldiers.  One witness testified that Lubanga’s group, the Union of Congolese Patriots (UPC) provided security in the Ituri region of the Democratic Republic of Congo (DRC) because no one else was able to do so.   There was testimony that Lubanga ordered the demobilization of all soldiers under 18 on three different occasions.  It is not clear if these orders may help to exonerate Lubanga or indicate that he was aware of the presence of child soldiers.  The defense seems to be that child soldiers were integrated into the UPC by assimilating other groups which had conscripted child soldiers, that Lubanga then ordered the child soldiers to be demobilized and his officers did not implement those orders.

Testimony continued today with a witness testifying that there was no forced conscription of child soldiers. The defense witness, Bede Djokaba Lambi Longa testified that there were not child soldiers in the UPC.  According to Longa, some soldiers were not tall, but he did not know them to be children.  There were children in the camps, but they were not soldiers according to Longa.

Lubanga is the first person to face charges in the International Criminal Court (ICC).  He is charged with conscripting and enlisting child soldiers as a war crime.  Lubanga was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of new charges and in 2010 to consider the argument that he could not get a fair trial because of the actions of the prosecution in withholding apparently exclupatory evidence. The appeals chamber ultimately reversed that decision and the case is now resuming following a denial of another motion to suspend the case.  A timeline of the trial is available here. Disclosure by the prosecution has been a continuing issue.

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Lubanga Disclosure Still an Issue

By | Published December 26, 2010

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.

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ICC Rules on Disclosure Obligation of the Prosecution

By | Published November 17, 2010

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.

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Judges Again Fault Office of the Prosecutor for Late Disclosure

By | Published November 9, 2010

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.

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