A Trial Chamber of the International Criminal Court has just ordered a stay of proceedings in the case involving Thomas Lubanga, who is charged with enlistment of child soldiers in the Democratic Republic of Congo: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf. The judges faulted the Office of te Prosecutor for failure to disclose exculpatory material to the defence. The Prosecutor had made agreements with the United Nations to obtain documents under condition that they would not be disclosed, and these included materials that might support an acquittal for Lubanga. The fundamental right to a fair trial has been breached, the judges conclude, and for this reason the highly exceptional measure of a stay of proceedings is ordered.
There is not provision in the Rome Statute for a stay of proceedings, and an earlier decision of the Appeals Chamber has held that this is not an available remedy. But article 67 ensures the right to a fair trial. An alternative remedy would be to disclose the material to the defence and proceed with the trial. But in so doing, the confidentiality agreeement with the United Nations would be breached.
This is the latest serious problem to afflict the Court as it struggles to become the functioning institution that so amny of us have campaigned for over the years. Already, the Lubanga case has taken an exceptionally long time to come to trial. It was always doubtful whether it belonged in The Hague at all, anyway, because Lubanga was already in custody in Congo awaiting charges on genocide and crimes against humanity. A Pre-Trial Chamber of the Tribunal authorised that Lubanga be prosecuted by the International Criminal Court because he was not charged in the national jurisdiction with enlistment of child soldiers. This always seemed to me like a distortion of the principle of complementarity, whose objective is to encourage national justice systems to assume their responsibilities. In trying Lubanga for genocide and crimes against humanity, I think that Congo was probably living up to its obligations to ensure that there would be no impunity. But the Court couldn't resist snatching him, as its first target. Now, it seems to be paying the price. It all looks rather like a Greek tragedy, with the Gods ensuring that the Court pay for the tragic flaw that characterised its first case.
Thanks to Deirdre Montgomery for sending this to me so quickly.