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Comment: Fair Trial vs Confidentiality

Judges at the ICC wrestle with conflicting rights in the trial of Thomas Lubanga.
By Eugène Bakama
The recent decision by the International Criminal Court, ICC, to suspend the case against former Congolese militia leader Thomas Lubanga raises critical issues that must be resolved quickly by the court.

How these issues are resolved will have far-reaching effects for the court, but will also impact the pending trials of three others from the Democratic Republic of Congo, DRC: Germain Katanga, Mathieu Ngudjolo, and Jean-Pierre Bemba.

Lubanga has been accused by the court of conscripting children under the age of 15 as fighters and using them in his militia in numerous ethnic clashes that took place in 2002 and 2003.

Lubanga’s trial was due to start on June 23, but was suspended by the ICC judges.

The court contended that that ICC prosecutor, Luis Moreno-Ocampo, had misused his authority by refusing to disclose more than 200 documents that he had collected from sources at the United Nations.

These documents included information that could have helped in Lubanga’s defence, the judges decided, and so Lubanga could not have a fair trial.

On July 2, the ICC decided to set Lubanga free as a logical consequence of the suspension of proceedings, even though no decision has been made as to Lubanga’s guilt or innocence.

On July 7, the ICC’s appeals chamber agreed to hear Moreno-Ocampo’s challenge to the ICC ruling, and kept Lubanga in detention until the appeal is decided.

The essential issue is a conflict between Lubanga’s right to a fair trial and the ability of the prosecutor to guarantee confidentiality for his sources of information.

Two provisions in the Rome Statute that created the ICC concern confidentiality of documents and the right to a fair trial.

According to article 54-3-e, the prosecutor can agree not to disclose, at any stage of the proceedings, documents or information that he obtained on condition of confidentiality and solely for the purpose of generating new evidence. That confidentiality can be lifted only when the provider of the information consents.

However, article 67-2 stipulates that the prosecutor shall, as soon as practicable, disclose to the defence evidence in the prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.

On one hand, the statute allows the prosecutor not to disclose the documents or information he obtained on the condition of confidentiality.

On the other, it directs the prosecution to inform the defence of the evidence that could help the accused.

In order to avoid the same difficulty in the Katanga, Ngudjolo and Bemba cases, the court must find a balanced solution that takes into account both the right to a fair trial and the guarantee of confidentiality.

It rests with the judges to decide on a course of action, if the UN opposes disclosure of the Lubanga case documents.

The action in the Lubanga case has now shifted to the appeals court which must rule on the suspension of the trial.

While the decision of the judges to suspend the Lubanga trial is a sign of their strong desire that the defendant receive a fair trial, it also created a lot of confusion.

It is important now for the ICC to conduct an awareness campaign in the Ituri region of the DRC to explain that the court’s action does not mean the end of the trial. Rather, it is a suspension aimed at protecting the right of the accused to a fair trial.

However the judges resolve the issue, which hopefully will serve both the right of the accused and the prosecutor, their decision will have far-reaching consequences.

It will affect at least three or more pending cases that involve similar militia leaders from the DRC. And it will also serve as important case law in the growing arena of international justice.

Eugène Bakama Bope is the president of the Friends of Law in the Congo.

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