ICC foul-up lets Lubanga off hook

Judges at the International Criminal Court (ICC) have called an indefinite halt to the case against a Congolese militia leader and will decide next week whether he should be released from jail.

They have accused prosecutors of abusing their power and in a decision on June 13 said the trial of Thomas Lubanga ”has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial”.

Lubanga, who is charged with recruiting child soldiers in the Democratic Republic of Congo, was to go on trial on Monday after more than two years in ICC custody.

The case is the first for the ICC, which is based in the Dutch city of The Hague. It is being closely watched, particularly in the Congo, where interest has been building in recent weeks as it seemed the long-delayed trial would finally begin.

But judges last week stayed the case and lambasted prosecutors for failing to hand over key evidence to Lubanga’s defence team. The trial had originally been scheduled for March 31 but was delayed then for the same reason.

The latest debacle centres on more than 200 documents given to the prosecutors by the United Nations and others. The prosecutors admit that some of the documents contain evidence that may justify Lubanga’s actions or show he is not guilty.

However, these documents were obtained under a confidentiality agreement and so cannot be shown to either the defence or the judges.

A provision in the Rome Statute, on which the court is based, allows for such agreements, but only in exceptional circumstances.

”This provision is to enable prose­cutors to access key information from international actors operating in — a conflict zone,” said Lorraine Smith from the International Bar Association.

But the judges said the prosecutors’ use of confidentiality agreements in the Lubanga case was improper and that they must properly disclose evidence.

Prosecutors have openly admitted that they could not have begun an investigation in the DRC without information provided by the UN under confidentiality agreements.

”We had to have a lot of information to identify the different leaders of groups and potential criminals,” said Béatrice Le Fraper du Hellen from the prosecutors’ office.

With the case now in serious jeopardy, a hearing is scheduled for June 24 to discuss Lubanga’s release.

He has been in custody in The Hague since transfer from prison in Kinshasa in March 2006. He is charged with conscripting child soldiers in Ituri, a mineral-rich region in north-eastern DRC that has seen fighting since the late 1980s, often over gold, diamonds and timber.

Le Fraper du Hellen said it is now up to the judges to decide if Lubanga will ever be tried by the ICC.

”We will try to solve the legal problems that are posed in the decision and we are hopeful that a new beginning of the trial will be scheduled very soon,” she said.

In Congo an indefinite delay to Lubanga’s trial is a public relations disaster for the court.

Many Congolese are frustrated but Lubanga’s supporters are jubilant, saying the recent events are proof that Lubanga is not guilty. — Institute for War and Peace Reporting.

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