No Progress in the Lubanga Trial

I recently blogged about Trial Chamber I’s stunning decision to stay Thomas Lubanga Dyilo’s trial because of the Prosecutor’s failure to disclose exculpatory evidence to the defense. The Court held a hearing on the 24th to determine whether, in light of its decision, Lubanga should be released. It has yet to reach a conclusion — but if the “compromise” the UN offered at the hearing is any indication, he might not be in custody too much longer:

In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on “UN territory”, to consult the documents.

They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.

During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that “the defence will not accept summaries, which cannot be evidence”.

“If you accept”, she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not.”

The judges seem to agree with Mabille: Justice Adrian Fulford told the Prosecutor that the court was “unlikely to approve a system that depends on its ability to memorize large quantities of information which it is unable to retain and study, and compare it with other evidence in the case so as to assess its relevance.” His position is sound: the last thing the Court needs is a trial that resembles a Guantanamo military commission. This trial will create the blueprint for future trials; it is thus imperative for the Court to do everything in its power to protect the defendant’s rights — even if that ultimately means letting Lubanga walk.