Lubanga is charged with the war crime of enlisting child soldiers in the Democratic Republic of the Congo. He has been in custody of the Court since March 2006 awaiting a trial which was initially scheduled to begin in March of this year, then postponed to June, and now stayed indefinitely. What was to be the first trial of the new Court has become its biggest crisis.
The core issue concerns hundreds of documents obtained by the Prosecutor, mainly for the United Nations but also from some NGOs, on a confidential basis. In principle, the Prosecutor is required to disclose to the defence any evidence in its possession that might be of assistance to the defence. However, it has invoked as an exception its right to obtain evidence on a confidential basis under limited circumstances. The Trial Chamber thinks the Prosecutor has abused this exception, in effect making very general commitments to information providers like the United Nations.
I have been in The Hague since Tuesday evening, and spent yesterday hanging out at the Court. I planned to attend the Charles Taylor trial and the Katanga confirmation hearing, both of which were underway, but after an hour or so in the courtrooms I went to the cafeteria where I began bumping into people, and really never left. Informal chats with people around the Office of the Prosecutor suggest a high level of confidence that a solution will be found and that the trial of Lubanga will continue. The Office of the Prosecutor appears to be working on some mechanism by which the judges will be able to assess the material themselves, confidentially, and decide whether it needs to be disclosed to the defence.
In my humble opinion, it is not at all obvious that this is the way forward here. The Prosecutor requires agreements from its information providers, including the United Nations, by which it can show the material to the judges. But can the judges participate in such a scheme? The information provider will simply extend the net of confidentiality to include the judges. If they conclude that some of the evidence must be disclosed to the defence, they will be at an impasse, and the trial will be aborted. The mechanism only works if they reach to opposite conclusion, namely that there is no information of an exculpatory nature in the package they are given by the Prosecutor. But can a trial then continue? Under very limited circumstances, it is allowed for judges to hold hearings ex parte, that is, without the defence being present. This works, for example, with issues involving the identity of witnesses, and similar matters. But can it ever be acceptable for judges to see large volumes of evidentiary material in the absence of an accused, material that may be inculpatory? We would hardly be surprised to learn of such procedures in Guantanamo, but in The Hague?
The Office of the Prosecutor is supremely confident that it has done nothing wrong. However, at least three judges think otherwise. We will await the Appeals Chamber decision impatiently on this point. Even if a solution is found, the approach of the Office of the Prosecutor in gathering evidence has created a terrible crisis in the Court. In such circumstances, someone has to fall on their sword. In a decision of a few weeks ago on disclosure-related matters in another case (http://www.icc-cpi.int/library/cases/ICC-01-04-01-07-621-ENG.pdf, para. 49), Judge Sylvia Steiner wrote:
After more than a hundred years of struggle, a permanent international criminal court has finally emerged as a unique symbol of the fight against impunity for the most heinous crimes of international concern. It represents the last hope for justice for the millions of children, women and men who have suffered, and are currently suffering, unimaginable atrocities that shock the conscience of humanity. With all due respect for the Prosecution, the Single Judge strongly believes that the International Criminal Court cannot allow such problems to reoccur, and that therefore, the Bureau of the Assembly of States Parties, as well as the Assembly of States Parties, will have to draw their own conclusions.Strong words.
On another note, my informal chats in the cafeteria of the Court reveal a growing frustration with the participation of victims in the proceedings. There is a sense that this is something that has spiralled completely out of control. One of the distinctive features of the Court, in contrast with the earlier Tribunals for the former Yugoslavia, Rwanda and Sierra Leone, not to mention Nuremberg, is the participation of victims. Proceedings at the Court are now literally dominated by victim issues. It has become a small cottage industry for lawyers. I learned a new expression in The Hague yesterday, when judges referred to ‘non-anonymous witnesses’, a wonderful example of a double negative.