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Experts Believe Lubanga Trial May Go Ahead

If judges find prosecutors have disclosed enough evidence, suspended trial could begin, say observers.
By Rachel Irwin
The long-delayed war crimes trial of a Congolese militia leader is likely to start, despite an appeals court ruling last week that upheld a controversial stay of proceedings, say analysts.



The International Criminal Court, ICC, trial of Thomas Lubanga was put on indefinite hold just days before it was scheduled to commence on June 23, after prosecutors failed to hand over key evidence to either the defence or trial judges.



However, prosecutors have now given judges the documents in question, and legal experts told IWPR this week that there is no reason why proceedings should not go ahead.



“There is a very strong likelihood that the trial will go ahead,” said Lorraine Smith, of the International Bar Association.



“We are hoping that the process of review [of the evidence] will happen very quickly, once the chamber feels, of course, that the requirements [relating to the documents] have been satisfied fully.”



The issue of whether the trial can finally start will be thrashed out at a hearing later this month.



At the heart of the problem are more than 200 documents which were handed over to prosecutors by various agencies, including the United Nations. Prosecutors have admitted that some of these documents are exculpatory, meaning they contain potentially exonerating evidence.



However, as they obtained the documents under a confidentiality agreement, prosecutors said they could not be shown to the defence or even to the trial judges in the case.



The prosecution appealed the judges’ June 13 decision to suspend the trial of Lubanga, who has been charged with using child soldiers to fight in the bloody conflicts in DRC’s Ituri region from September 2002 to August 2003.



However, on October 21, appeals judges maintained the stay of proceedings, saying they could not proceed unless the key evidence was disclosed. They also rejected an earlier decision by trial judges which called for Lubanga’s release.



Catherine Mabille, Lubanga’s lawyer, told IWPR that the trial judges are currently reviewing the recently released documents.



“The chamber is looking into all the documents we couldn’t have,” said Mabille.



Alison Smith, coordinator of the international criminal justice programme at the NGO No Peace Without Justice, said that a trial could very well begin in the near future, especially since the information providers, including the UN, have agreed to lift confidentiality.



“That’s been the main obstacle that has prevented the trial from moving forward,” she said.



The Office of the Prosecutor, OTP, declined to comment on the status of the case, despite repeated requests from IWPR for an interview.



However, a prosecution filing recently posted on the court’s website states that as of October 13, the OTP has provided the trial judges with “all of the documents from all of the information providers in non-redacted form henceforth and through the entirety of the trial for its review”.



The filing states that of the 228 items, 135 can be fully disclosed to the defence, while there are restrictions on the remaining 93. Significantly, all of the documents are now available in their complete form for the trial judges to review.



Although observers say there is a good chance the trial will now start, most agree that if the judges decide it cannot go ahead, then calls for Lubanga’s release are likely to grow louder.



Such calls have even come from inside the appeals chamber itself, with Judge Georghios Pikis arguing in his October 21 dissenting opinion that the court cannot continue to detain Lubanga in the hope of trying him at a “future, uncertain time”. To do that, he said, would prolong the accused’s detention “for no fault of his own”.



Mabille also questioned the decision to keep Lubanga in custody if proceedings show no sign of resuming.



“The problem is that if there is a trial some day, the court must be sure he could appear,” she said. “[But] you can’t keep someone in jail saying, ‘Maybe one day we are going to have a trial.’”



The issue of Lubanga’s potential release is a certainly a thorny one, with the need to balance a desire for justice with the accused’s right to not be held indefinitely.



“The pressure is clearly on now for a trial date to be set or for some kind of release to be ordered,” said Alison Smith. “Mr Lubanga has been in custody in The Hague for two and a half years now. If that was happening in national courts, it would be considered a very long time to be held without trial.”



While she acknowledged that there would be an understandable outcry if Lubanga were to be released without trial, she pointed out that such a factor would have no bearing on the judges’ decision.



“The victims would be outraged [if he were to be released], and I can certainly understand that,” she said. “He’s charged with very serious crimes, and he’s the first one who’s been charged, and everyone’s been waiting for him to stand trial. But legally, it’s not something the judges need to be considering when making their decision.”



Victims’ advocacy groups say that the ongoing uncertainty in the Lubanga trial – with its repeated delays and continuous technical decisions – has caused a great deal of confusion among people living in DRC.



“It’s extremely difficult for [the victims] to understand what’s going on now,” said Anne Althaus, the ICC Programme Advisor at REDRESS, an organisation that campaigns on behalf of victims of torture.



“These decisions are very technical. [For people in the field,] it’s not easy to understand what the practical consequences are.”



Anneke van Woudenberg, senior researcher on the DRC for Human Rights Watch, expressed concern about the often conflicting, incorrect reports that have been disseminated by various factions in the DRC, including supporters of Lubanga.



“I think people who were supporters of Lubanga have, of course, used these legal wranglings to justify [their claim] that Lubanga is innocent,” she explained. “That is falling on some receptive ears, and the court really needs to make more effort to counter such information being circulated, or at least give the alternative view.”



The efficacy of the ICC’s outreach programme has been disputed among experts and NGOs.



Bukeni Waruzi, originally from South Kivu province and currently the programme coordinator for Africa and the Middle East at WITNESS, an organisation that documents human rights violations, said that the ICC outreach had been inadequate.



“What is happening now is the result of a very weak outreach approach. Now it’s too late, and people are upset,” said Waruzi, who recently returned from a visit to the DRC. He added that the ICC didn’t do enough to inform people about the possibility of unexpected delays, the legal complications involved, or to manage the “huge expectations” that came with Lubanga’s arrest.



But the ICC maintains that it has a robust outreach programme, which employs three full-time staff members on the ground.



Sonia Robla, head of public information and documentation at the ICC, told IWPR that since the appeals decision to maintain the stay of proceedings was announced last week, a staff member gave eight television and radio interviews to outlets that broadcast in Kinshasa and the Ituri region. In addition, she said that all ICC press releases are delivered in person to media outlets and NGOs in Kinshasa and Bunia.



As observers wait to see what will happen in the Lubanga trial, most agree that the case should be instructive for the ICC.



“I’m hoping, as many of our colleagues are, that this will prompt a review by the office of the prosecutor as to how they gather information,” said Alison Smith.



“It’s questionable whether the ICC should have signed an agreement which effectively prevents judicial review of important documents.”



Lorraine Smith added that relying heavily on outside information and research can be very problematic.



“The judges have made it clear that there was too much reliance on information providers,” she said. “When you rely on information providers, you have less control over how the material is gathered. I think that undue reliance places the prosecutors in a very difficult position.”



Regardless of how the ICC decides to approach cases in the future, experts and advocates agree that the need for the Lubanga trial to proceed quickly and fairly is critical – for the victims and for the credibility of the court itself.



“I think that the need for the ICC to ensure a fair trial and to be seen as ensuring a fair trial is very high,” said Alison Smith. “Obviously, it’s not the end of the ICC if [the trial] doesn’t go ahead. But it will make [the court’s] work much more difficult in the years ahead if it doesn’t.”



Concerns about the court and a fair judicial process, said Waruzi, no longer have much resonance for people living in the DRC.



“The peasant in Ituri who has seen his daughter abducted and raped – you think he cares about the process?” asked Waruzi. “What he or she wants is to see the final decision, and that decision shouldn’t take years.”



Rachel Irwin is an IWPR reporter in The Hague.

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