ICC Decides to Release Lubanga; Prosecution Appeals

Published: 1 Jul 2008

Refugee Rights News
Volume 4, Issue 5
July 2008

On July 2, 2008, the International Criminal Court’s (ICC) Trial Chamber ruled that Thomas Lubanga Dyilo, a Congolese warlord and the first person ever to be arrested on ICC charges, should be released from detention. The ruling from the Hague is the most recent in a string of historic events that began years ago in the eastern part of the Democratic Republic of Congo (DRC).

Background to the Lubanga trial

In June 2003, Ituri province found itself in a situation described by the International Crisis Group as “pre-genocidal.” Conflict between the governments of Rwanda, Uganda and the DRC fuelled fighting among no fewer than six rebel groups, most of which pitted the Hema ethnic group against the rival Lendu group. The Hema were represented in two militias: the Union des patriots congolais (UPC), led by Lubanga, and the Parti pour l’unité et la sauvegarde de l’intégrité du Congo, which split off from the UPC with assistance from Kinshasa. The Lendu formed the Front national intégrationiste, who were allied with the Force de résistance patriotique en Ituri.

This and other ongoing conflicts in the DRC led to the ICC’s first investigation, opened in May 2004 further to a March 2004 referral from the Congolese government. Lubanga was the first person to be indicted in the DRC investigation; he was charged in February 2006 with the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities during and before the conflict.

Lubanga was arrested in May 2006. He made several pre-trial appearances in the Hague and his trial, which was to be the first for the ICC, was set to begin on June 23, 2008. On June 13, however, the trial was stayed due to a failure to resolve a conflict over the fate of over 200 potentially exculpatory documents received by the prosecution from the United Nations (UN) and organizations in DRC, which provided the evidence on the condition of confidentiality. The Trial Chamber ruled that the prosecution’s failure to disclose the evidence to the defense undermined fair trial considerations. The prosecution appealed the stay of the proceedings and that appeal is currently pending.

Will Lubanga be released?

The stay prompted Lubanga’s lawyers to argue that he should be released, a possibility that sparked outrage in DRC and internationally. Carine Bapita Buyangandu, a lawyer representing victims, said Lubanga’s release could “set fire” to Ituri. Meanwhile, with agreement from the UN agencies that had provided it, the prosecution offered to disclose the evidence at issue to the Trial Chamber judges and argued that such disclosure should allow the trial to continue. The judges, however, declined to view the evidence, believing the conditions under which they would be allowed to do so were too restrictive. Then, despite the pending prosecution appeal of the decision to stay the trial, came the Trial Chamber’s order that Lubanga be released. The judges maintained that, in the absence of the prospect of a fair trial, Lubanga’s detention could no longer be justified.

Lubanga was not, however, immediately released. The prosecution was allowed five days within which to appeal and such appeal could request that Lubanga’s release be suspended pending the appellate decision. The prosecution immediately appealed the decision to release Lubanga and their appeal indeed included a request that Lubanga’s release from detention be suspended. On July 7, 2008, the Appeals Chamber granted the prosecution’s request for suspensive effect. Lubanga cannot, therefore, be set free until the Appeals Chamber rules on the prosecution’s appeal against the decision to release him.

A failure of justice?

The decision to release Lubanga prompted criticism on a number of fronts. The decision itself has been criticized, particularly by victims’ counsel and victims’ groups, who feel that justice is not being done. REDRESS reported that several of the survivors said that they in fact felt “re-victimized” by the consequences that the ICC’s decision might have on their security, hopes for peace and need for justice. REDRESS further reports that some survivors say they feel “abandoned” by the international community. In their decision, however, the Trial Chamber stressed that it had “given full weight to the fears of, and the possible consequences to, the victims as a result of a decision to release the accused.” Ultimately, however, fair trial standards outweighed considerations relating to victims. The decision has also been criticized by organizations in DRC that provided the prosecution with evidence, many of which now fear reprisals for their cooperation with the ICC. Anecdotal evidence suggests that certain individuals who cooperated with the prosecution are now fleeing DRC.

The prosecution has been heavily criticized for mishandling the matter of the confidential evidence. An article in London’s Daily Telegraph even called on the Chief Prosecutor at the ICC, Luis Moreno-Ocampo, to resign. The prosecution’s inability to secure a trial, let a alone a conviction, for Lubanga calls into question their ability to successfully try other powerful perpetrators such as the recently arrested Jean-Pierre Bemba, who was apprehended in May in connection with the Central African Republic investigation, or president Omar al-Bashir of Sudan, who may be indicted further to the prosecution’s July 14 application for a warrant on charges of war crimes, crimes against humanity and genocide allegedly committed in Darfur.

The UN has also been criticized for failing to find a solution to the problem of the confidential evidence that would allow the trial to move forward. Bukeni Waruzi of WITNESS said, “it is unconscionable that the ICC and the UN have failed to come to an agreement that would allow this case to move forward to acquire justice for the thousands of children who have been and continue to be trapped and enslaved as child soldiers.” Although the UN’s insistence that the documents remain confidential was likely motivated by legitimate security concerns, the conditions under which the judges would be allowed to view the evidence – in a UN facility, supervised by a UN official and without the ability to take notes – were so rigid that it left little hope of any possibility of the evidence ever being disclosed to the defense, which lies at the heart of the Trial Chamber’s view regarding the practical impossibility of Lubanga ever receiving a fair trial. Indeed, the UN stipulated that the judges would not be allowed to share anything they learned from viewing the evidence with the defense.

A triumph for due process?

In the midst of much criticism, however, certain actors cautiously praised the Trial Chamber’s respect for the important fair trial principle that the defense must have access to potentially exculpatory material, because the defense is not as well resourced as the prosecution and so that the defense may respond appropriately to potentially exonerating evidence. William R. Pace, convener of the Coalition for the ICC, noted, “while some of our DRC members who were so instrumental in bringing this case forward will be disappointed by today’s decision, it does, at the very minimum, reinforce the ICC’s commitment to uphold high standards of fair trial for anyone, even those accused of war crimes.” He added, “the fairness and independence of the judges is fundamental if the ICC is to secure the support of the international community. The sharing and disclosure of evidence is one of the most difficult aspects of international justice, and one that the ICC is just beginning to address.”

With the prosecution’s appeal of the decision to release Lubanga pending, his fate hangs in the balance. In the eyes of some, so does the credibility of the ICC.

Programmes: Resolving Displacement
Type: Library, Refugee Rights News