Tuesday, 14 October 2008

Another Setback for the Prosecutor in the Lubanga case

Yesterday, the Appeals Chamber of the International Criminal Court dismissed an application by the Prosecutor to produce new evidence in its appeal of the decision of the Trial Chamber granting a stay of prosecution to Lubanga and, in effect, putting an end to the trial: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1476-ENG.pdf. Back in June, the Trial Chamber put an end to proceedings because the Prosecutor had failed to disclose evidence to the defence that it had obtained on a confidential basis from the United Nations and from come NGOs. Since filing the appeal, the Prosecutor has continued to make efforts to resolve the situation. In early August, he spoke at the Salzburg summer school on international criminal law and seemed confident that the situation would be repaired and that the trial would go on. But Professor Kai Ambos, who also spoke at the summer school, was not as optimistic. He pointed to the inadequacies in the Prosecutor’s recent attempts to disclose the evidence in question. Late in August, the same Trial dismissed a motion by the Prosecutor that was based upon his efforts since the June decision to unblock the situation. Then the Prosecutor applied to the Appeals Chamber for it to consider more recent developments in considering the appeal of the June judgment. But the defence objected, and the Appeals Chamber agreed. The appeal concerns the facts as they stood when the Trial Chamber issued its judgment in June. Any new facts have to be considered by the Trial Chamber first. They cannot simply be imported into the Appeals Chamber.
Thanks to Yvonne McDermott.


VC Lindsay said...

It does not effectively put an end to the Lubanga trial! The stay is indefinite but not permanent, and the disclosure proceedings are continuing before the Trial Chamber (TC). The TC will keep the stay in place until all documents can be viewed by the judges under appropriate circumstances. You have to be the ultimate pessimist to think the prosecutors and those NGO's who are foolishly refusing to trust the ICC judges to view evidence in camera will continue to resist once they see the only option is to permanently discontinue the trial. We are far from such a position, I believe. Those coming from a civil law background simply do not understand that the stay is merely a coercive tool to get the trial moving again. The way some continental scholars and lawyers are melodramatically overreacting is worse for the Court than any temporary stay imposed by an independent chamber.

VC Lindsay said...

The prosecutor refused to disclose the evidence to the judges, not the defence. The judges want to determine whether the evidence must be disclosed to the defence. It is most likely once the judges see the evidence, they would determine that the defence need not see it. This would depend upon whether there would be a need to conduct further investigation into the evidence. Usually the exculpatory evidence provided by the prosecutor is not that kind of evidence.

The key for re-starting the Lubanga trial is in the hands of the NGOs. For some reason they do not trust the judges of the ICC to confidentially examine the evidence they have given to the prosecutor. Even if the judges viewed the evidence and decided the defence would have to see the evidence at a trial, there would be no defence disclose without consent. Their fears are so unreasonable that I cannot but believe they will come to their senses. Their unreasonable fears are most likely the only obstacle to the trial.