Thursday, 8 July 2010

Lubanga Trial is Stayed Again

Two years ago, the first trial at the International Criminal Court went pear-shaped as the Trial Chamber ordered a stay of proceedings because of the inability of the Prosecutor to provide full disclosure. The trial began in 2009, but has hit another major snag abou the issue of so-called 'intermediaries'. These are individuals - NGOs, aid workers, etc. - who act as go-betweens between witnesses and the Office of the Prosecutor. Recently the Trial Chamber made orders concerning the disclosure of the identity of some of these intermediaries, but its rulings have not been followed by the Prosecutor.
Today, clearly frustrated by the defiance of the Prosecutor, the Trial Chamber decided to play hardball. It ordered another stay of proceedings in Lubanga, recalling that its authority to make such a stay had been confirmed by the Appeals Chamber and that a temporary stay of proceedings was just that, and would presumably become permanent at a certain point in time.
Here are some of the relevant passages from today's ruling:

21. The second problem, however, reveals a more profound and enduring concern. The Prosecutor, by his refusal to implement the orders of the Chamber and in the filings set out above, has revealed that he does not consider that he is bound to comply with judicial decisions that relate to a fundamental aspect of trial proceedings, namely the protection of those who have been affected by their interaction with the Court, in the sense that they have had dealings with the prosecution. Essentially, for the issues covered by Article 68 in this way, he appears to argue that the prosecution has autonomy to comply with, or disregard, the orders of the Chamber, depending on its interpretation of its responsibilities under the Rome Statute framework.
24. Article 68 of the Statute gives the Prosecutor positive protective obligations when investigating and prosecuting crimes - "the Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes" - but those responsibilities do not give him licence, or discretion, or autonomy to disregard judicial orders because he considers the Chamber's Decision is inconsistent with his interpretation of his obligations...
27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial...
28. The Prosecutor has chosen to prosecute this accused. In the Chamber's judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court's orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.
Thanks to Maria Varaki.

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