A decision today by the Appeals Chamber of the ICC clears the way for the Court to resume its landmark first trial in the near future. The trial of Thomas Lubanga Dyilo on charges of recruiting and using child soldiers in the Democratic Republic of the Congo, which began in January 2009, has experienced several delays which have frustrated ICC supporters but have also demonstrated that the Court is fully functioning and maintaining the rights of all parties.
The most recent delay began on July 8 when the trial judges ordered a stay in the proceedings after determining that the Prosecutor had not complied with their order to disclose to the defense information about the identity of a person who assisted the prosecution with obtaining witness evidence. In addition, the Trial Chamber ordered the release of Lubanga because it did not believe that a fair trial was possible given that, in its view, the Prosecutor refused to comply with judicial orders of the Court, and thus it had lost control of the proceedings. The trial judges did not give effect to the order to release Lubanga until the Prosecutor had the chance to appeal the decision. Last month, the prosecution offered to provide the requested information. However, the chamber refused to restart the trial because it maintained its concern about the prosecution’s unwillingness to comply with judicial orders, a matter that was also the subject of appeal.
Today’s decision is the result of the Prosecutor’s appeal. In it, the judges found that the Trial Chamber did not make an error in determining that the Prosecutor failed to implement its orders and thus threatened the fairness of the trial. It decided, however, that the Trial Chamber had not lost control of the proceedings and had other, less drastic measures, such as sanctions to bring about compliance, at its disposal besides staying the proceedings and ordering the release of Lubanga. The Trial Chamber should have, in the opinion of the Appeals Chamber, imposed such sanctions before ordering a stay of the trial. It is unclear from the decision whether the Prosecutor could still face sanctions now that he has disclosed the information that he previously refused to disclose.
Previously, the start of the Lubanga trial had been delayed because the prosecution did not disclose materials to the defense which may have helped Lubanga to defend his case. The relevant materials were eventually made available to him. There was also a delay of several months in late 2009 because two of the three trial judges gave notice that the chamber may convict Lubanga of crimes about which it hears evidence but for which he was not charged. The prosecution and the defense appealed this decision. The Appeals Chamber ruled that the Trial Chamber could not convict him of additional charges.
Photo ©ICC-CPI/Michael Kooren