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Lessons learnt from the ICC case against Thomas Lubanga Dyilo
25 October 2010

Ottilia Anna Maunganidze, International Crime in Africa Programme (ISS Pretoria)

Ending months of speculation and uncertainty, the Appeals Chamber of the International Criminal Court (ICC) ordered a resumption of proceedings in the Thomas Lubanga Dyilo case. Lubanga Dyilo`s is the first case before the ICC.  He is accused of enlisting, recruiting and using children under the age of 15 to participate actively in hostilities in the Eastern Democratic Republic of the Congo (DRC) province of Ituri between 2002 and 2003.

The decision by the Appeals Chamber, delivered by the ICC President Judge Sang-Hyun Song, was handed down on Friday 8 October 2010. The appeal, lodged by the Prosecutor of the ICC, was against an earlier order of the Trial Chamber made on July 8 to stay proceedings in the case against Lubanga Dyilo and to release the defendant. Despite ruling in favour of the Prosecution, the Court had harsh words for the Office of the Prosecutor (OTP), reprimanding it for its conduct in the case that had led to the Trial Chamber`s decision.

The Trial Chamber`s decision to stay proceedings was made primarily on the basis that the OTP had abused the process and failed to afford the defendant his right to a fair trial. The Prosecution had refused to release crucial information regarding the identity of intermediary 143 to the defence. According to the defence, some of the intermediaries (intermediary 143 included) who had helped facilitate the OTP`s investigations in the DRC had bribed witnesses into giving false testimony. In demanding full disclosure of the intermediary`s identity the defence argued that without it the defendant`s right to a fair trial would be unjustifiably violated. The Prosecution defended its decision not to disclose the intermediary`s identity at the time, submitting that if the identity was revealed there were no mechanisms in place to ensure the safety of the intermediary.

With due regard to both the Prosecution and the defence`s arguments, the Trial Chamber ordered the Prosecutor to release the requested information, but the OTP refused to comply.  Thus, in addition to the decision to stay proceedings, the Trial Chamber held that the Prosecution`s failure to carry out the Court`s order amounted to an abuse of process, the consequence of which was that the Court could not guarantee the defendant a fair trial. Thus the Court ordered that Lubanga Dyilo be released. The Prosecutor appealed against both decisions.

The Appeals Chamber held that the ruling of the Trial Chamber had gone too far when it ordered the stay of proceedings and the release of the defendant, rather it reasoned that instead of ending the proceedings the Trial Chamber should have resorted to imposing necessary sanctions to ensure that the OTP complied with the Court`s order.  It did this despite finding that the OTP, by deliberately defying the initial order of the Trial Chamber, had acted disingenuously. The Appeals Chamber reiterated that all Court orders are binding and that all parties to proceedings are obliged to adhere to them. The Appeals Chamber further stated that only it had the authority to vary or reverse decisions of the Trial Chamber.

The Court`s decision comes just weeks after the OTP on September 13 indicated that it was ready to disclose the identity of the intermediary to the defence, in compliance with the order of the Trial Chamber. The OTP informed the Court that necessary protective measures had been put in place, and on October 8 the identity of intermediary 143 was divulged.

This latest decision from the Court reaffirms the independence of the ICC`s judges and their powers of oversight over the conduct of the Prosecutor.  Despite the gravity of the charges leveled against Lubanga Dyilo, the decision also confirms that the Court strictly upholds the legal principles of fair trial and due process.

The decision deftly balances these principles and the right of the defendant against those of the victims and the necessity of ensuring that justice is done. In the Appeal Chamber`s decision the role of the Trial Chamber was emphasized. It was stressed that the Trial Chamber is the “ultimate arbiter” in balancing the interests of victims and witnesses against the right to fair trial of the defendant – and that its decisions had to be respected and obeyed by all parties, including the Prosecutor. The case of Lubanga Dyilo has now resumed where it left off three months ago with the Prosecution leading evidence. This case is set to continue for months, maybe even years, to come.

Meanwhile, another case relating to the situation in the eastern DRC is set to commence at the ICC with the arrest of Callixte Mbarushimana by French officials on 11 October 2010. Mbarushimana is the executive secretary of the predominantly Hutu militia group, the Democratic Forces for the Liberation of Rwanda (Forces Démocratiques de Libération du Rwanda - FDLR). Mbarushimana is wanted by the ICC on charges of crimes against humanity and war crimes allegedly committed in 2009 during the armed conflict in the Eastern provinces of North and South Kivu. His arrest has been welcomed by human rights advocates and human rights groups as sending a clear message to perpetrators of international crimes that the ICC will continue to work relentlessly towards ensuring that justice is done. 

As more cases come before the ICC it is hoped that the Lubanga Dyilo case will guide the work of the Court in promoting rule of law through conducting fair trials. Lessons learnt from this case will help to ensure long-term sustainability and respect for the Court. It should be borne in mind that the ICC is still a young institution, progressively developing its jurisprudence, and the Lubanga Dyilo case has helped to confirm that the ICC judges uphold principles of due process. The rights of all parties that appear before the Court, including those of alleged warlords, are respected. It is only through adherence to these principles and the respect of the rights of the accused, victims and witnesses that justice is effectively served, and that the ICC can continue to serve an important role in promoting international criminal justice.


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