Problems in Lubanga Resolved?

According to the ICC President and Prosecutor, Lubanga’s trial can now continue, because the UN has agreed to turn over the disputed evidence to the Trial Chamber and the defense:

“The obstacles have been lifted,” chief prosecutor Luis Moreno-Ocampo told journalists on the sidelines of a ceremony in The Hague to mark the 10th anniversary of the Rome Treaty that led to the court’s creation.

Lubanga’s trial would be the ICC’s first.

Court president Philippe Kirsch said the main point of contention, over the prosecution’s alleged abuse of a confidentiality allowances, should be resolved “shortly”.

On June 13, judges imposed an indefinite stay on proceedings, due to have started last Monday, after finding that prosecutors had wrongly withheld evidence, notably from the United Nations, from Lubanga’s lawyers.

This “misuse” inhibited Lubanga’s ability to prepare a proper defence, they said.

Lubanga subsequently applied for release, and on Wednesday the ICC ordered him to be freed from detention. But the prosecution lodged an immediate appeal that suspended Lubanga’s release.

“The UN has sent a letter authorising the other parties to have access to the documents,” Moreno-Ocampo said Thursday, reiterating that he was confident the trial would kick off by autumn.

If true, this is good news indeed. It would have been very unfortunate if the ICC’s first trial had been derailed by the Prosecutor’s overbroad use of confidentiality agreements. But at the same time, a Gitmo-style show trial involving secret evidence would have done lasting damage to the Court’s legitimacy. The Trial Chamber’s decision to stay the trial was thus the right move, because it forced the UN, which is obviously deeply invested in the success of the ICC, to do the right thing and release the evidence.

The judges of the Trial Chamber deserve praise for their willingness to defend the integrity of the system at all costs. I can only imagine the political pressure that was being exerted on them behind the scenes to permit Lubanga’s trial to continue. Their bravery led to the only satisfactory resolution of the problem — and helps establishes the critical judicial independence of the Court.