Opinio Juris

According to the ICC President and Prosecutor, Lubanga's trial can now continue, because the UN has agreed to turn over the disputed evidence to the Trial Chamber and the defense:

"The obstacles have been lifted," chief prosecutor Luis Moreno-Ocampo told journalists on the sidelines of a ceremony in The Hague to mark the 10th anniversary of the Rome Treaty that led to the court's creation.

Lubanga's trial would be the ICC's first.

Court president Philippe Kirsch said the main point of contention, over the prosecution's alleged abuse of a confidentiality allowances, should be resolved "shortly".

On June 13, judges imposed an indefinite stay on proceedings, due to have started last Monday, after finding that prosecutors had wrongly withheld evidence, notably from the United Nations, from Lubanga's lawyers.

This "misuse" inhibited Lubanga's ability to prepare a proper defence, they said.

Lubanga subsequently applied for release, and on Wednesday the ICC ordered him to be freed from detention. But the prosecution lodged an immediate appeal that suspended Lubanga's release.

"The UN has sent a letter authorising the other parties to have access to the documents," Moreno-Ocampo said Thursday, reiterating that he was confident the trial would kick off by autumn.

If true, this is good news indeed. It would have been very unfortunate if the ICC's first trial had been derailed by the Prosecutor's overbroad use of confidentiality agreements. But at the same time, a Gitmo-style show trial involving secret evidence would have done lasting damage to the Court's legitimacy. The Trial Chamber's decision to stay the trial was thus the right move, because it forced the UN, which is obviously deeply invested in the success of the ICC, to do the right thing and release the evidence.

The judges of the Trial Chamber deserve praise for their willingness to defend the integrity of the system at all costs. I can only imagine the political pressure that was being exerted on them behind the scenes to permit Lubanga's trial to continue. Their bravery led to the only satisfactory resolution of the problem — and helps establishes the critical judicial independence of the Court.

As I anticipated a few days ago following the UN's refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga Dyilo's unconditional and immediate release:

30. As just set out, the Chamber's Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.

The Trial Chamber's decision, however, does not mean that Lubanga will walk out of the Hague anytime soon. First, despite releasing him "unconditionally" and "immediately," the Court stayed his actual release pending appeal of its order by the Prosecutor:

35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.

The Prosecutor will no doubt ask the Appeals Chamber to suspend the release order, which means that Lubanga will remain in detention until the Chamber resolves the appeal, however long that takes.

Second — and I doubt this aspect of the order will receive much media attention — the Trial Chamber indicated that Lubanga will be released only if a State is willing to take him:

36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.

That requirement could be a serious problem for Lubanga. I predicted in my forthcoming article "What Happens to the Acquitted?" that ICC acquittees will find it no less difficult to find new homes than ICTR acquittees like Ntagerura and Rwamakuba, and I am confident — sadly — that Lubanga's "release" will prove me right. There is no way the DRC will take him; he is, after all, a rebel. And it is very unlikely that any other State will be enthusiastic about having an accused war criminal walking free on its territory. So I fear that Lubanga may end up sharing the same fate as Ntagerura and Rwamakuba: being "free" to enjoy living as a virtual prisoner in a UN safehouse.

I recently blogged about Trial Chamber I's stunning decision to stay Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. The Court held a hearing on the 24th to determine whether, in light of its decision, Lubanga should be released. It has yet to reach a conclusion — but if the "compromise" the UN offered at the hearing is any indication, he might not be in custody too much longer:

In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on "UN territory", to consult the documents.

They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.

During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that "the defence will not accept summaries, which cannot be evidence".

"If you accept", she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not."

The judges seem to agree with Mabille: Justice Adrian Fulford told the Prosecutor that the court was "unlikely to approve a system that depends on its ability to memorize large quantities of information which it is unable to retain and study, and compare it with other evidence in the case so as to assess its relevance." His position is sound: the last thing the Court needs is a trial that resembles a Guantanamo military commission. This trial will create the blueprint for future trials; it is thus imperative for the Court to do everything in its power to protect the defendant's rights — even if that ultimately means letting Lubanga walk.