Two months ago, Trial Chamber I ordered a stay of proceedings in the Lubanga case. The Prosecutor appealed, and we are all waiting for the next development. A few days ago, the Prosecution filed a motion
requesting permission from the Trial Chamber to continue to take testimony while the stay of proceedings is in place. This interesting report on developments is contributed by Niamh Hayes:
The motion indicates that the Prosecution contacted the Defence on September 13 and offered to disclose the identity of Intermediary 143. The stay of proceedings was initially imposed as a result of the Prosecution's refusal to follow a number of orders from Trial Chamber I to disclose the intermediary's identity. The Prosecution's sudden willingness to comply may be explained by the fact that Trial Chamber II had ordered the Victims and Witnesses Unit to implement full protective measures for the intermediary, as the Prosecution has repeatedly claimed in its appeal filings that it merely wanted to ensure that Intermediary 143 would not be put at risk by disclosure in the absence of full protective measures. However, both Trial Chamber I and the Victims and Witnesses Unit were satisfied in July that the limited disclosure ordered would not entail any additional risk to the safety of Intermediary 143.
It seems likely that there are two motivations for the Prosecution's offer to release the identity of Intermediary 143 at this point. The first is to provide a reasonable basis for the Appeals Chamber to lift the stay of proceedings and reverse the order for Lubanga's release. Although the Prosecution motion acknowledges that 'disclosing the identity of Intermediary 143 does not resolve the concerns that triggered the order to stay proceedings', it does amount to (belated) compliance with the Trial Chamber's orders. The issue being appealed is whether a fair trial is possible in circumstances where the Prosecutor refuses to obey the authority of the Trial Chamber, rather than whether the Trial Chamber was correct in ordering the disclosure of Intermediary 143's identity, and it would be difficult to envisage the Appeals Chamber not deciding in favour of the Trial Chamber's interpretation of the importance of judicial authority. However, no-one at the Court wants to see this case ending over such a frustratingly petty issue. This could potentially allow the Appeals Chamber to conclude that the conflict giving rise to the stay of proceedings has been resolved and to resurrect the prosecution against Lubanga once again, probably along with a stern warning about the importance of compliance with all future orders of the Trial Chamber. However, it's also worth noting the second motivation for the Prosecution's offer to disclose. Trial Chamber II has been in contact with the Victims and Witnesses Unit in relation to Intermediary 143 on the basis of a defence request from Katanga and Ngudjolo, who are also seeking the intermediary's identity. The order to implement full protective measures is a precursor to an order from Trial Chamber II to disclose the identity of the intermediary to the Katanga and Ngudjolo defence teams. That would put the Prosecution in an immensely difficult position - to refuse could potentially put a second case in peril, but to comply would appear entirely illogical given the Prosecutor's absolute insistence on refusing to follow an almost identical disclosure order from Trial Chamber I, despite the gravity of the consequences for that case. The explanation for this development may be as simple as the presence of protective measures for the intermediary, but it remains to be seen whether the Appeals Chamber is willing to seize on the offer of disclosure to put an end to another embarrassing chapter in the Court's history.
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