Lubanga’s Release Gets a Step Closer — Maybe

The Lubanga fiasco continues.  Earlier today, the Appeals Chamber upheld the Trial Chamber’s indefinite stay of the proceedings, but refused to order his immediate release, instead remanding the case to the Trial Chamber for further consideration of the issue.

I have not had a chance to read the two — typically lengthy — decisions in any great detail, but these are the critical paragraphs from the decision on the stay, in which the Appeals Chamber points out that the Trial Chamber correctly concluded that there was “no prospect” of the exculpatory information being turned over to Lubanga any time soon:

90. Thus, by the time the Trial Chamber rendered the Impugned Decision – nine months after the issue had been first raised before the Trial Chamber and one week before the trial was due to start – it had become obvious that the assurances that the Prosecutor had given to the Chamber in October 2007, namely that the information providers were prepared to consent to the disclosure of the material in question, had proved to be wrong. The information providers were reluctant to consent to the disclosure of the material that they had provided and in spite of negotiations between the Prosecutor and the information providers, there had been only very limited results. The reaction of the providers to the Order of 3 April 2008 demonstrated that they would not consent to the disclosure of the material even to the Chamber, although some of the providers changed their position following the undertaking by the Trial Chamber at the status conference on 6 May 2008.

91. The United Nations, from which the Prosecutor had obtained most of the documents in question, had responded negatively to the procedure contemplated at that status conference and to the undertaking of the Trial Chamber. By the time of the Impugned Decision only two of the 156 documents provided by the United Nations had been disclosed to the defence. In relation to 33 other documents, the United Nations had indicated their willingness to consider making available “elements of information” to the Trial Chamber. In relation to 121 documents, however, there were no tangible developments. To the contrary, the submissions of the Prosecutor at the status conference of 10 June 2008 indicated that it might not be possible to find a solution in respect of these documents. Thus, at the time the Trial Chamber rendered the Impugned Decision, and after lengthy discussions between the Prosecutor and the United Nations, it was not even clear that the Trial Chamber would be given access to all or the majority of the documents obtained from the UN, let alone that the documents could be disclosed to the defence. In such a situation, the Appeals Chamber does not consider it erroneous that the Trial Chamber concluded that in spite of the ongoing discussions between the Prosecutor and the United Nations, there was no prospect that the difficulties would be overcome.

The decision also provides some important detail concerning the substance of the non-disclosed information:

93. … In the Submission of 28 March 2008, the Prosecutor submitted that the material which had not yet been disclosed could be divided into ten categories: six categories of evidence that did not materially impact upon the determination of the guilt or innocence of the accused, and four categories of evidence that could materially impact on the guilt or innocence of the accused (Submission of 28 March 2008, paragraphs 8 et seq.). These four categories were identified as information relating to “[g]rounds for excluding criminal responsibility”, “[e]fforts to demobilise”, “[i]nsufficient command and control” and the “[r]ole of Uganda and Rwanda” (Submission of 28 March 2008, paragraphs 19 et seq.).

94. It is evident that material relating, for example, to the purported insufficient command and control of Mr. Lubanga Dyilo over the troops allegedly directly responsible for the recruitment of the child soldiers could have a fundamental impact on the finding of guilt or innocence of the accused. The Appeals Chamber notes that the Prosecutor sought to explain in the Submission of 28 March 2008 and later in a submission dated 15 April 2008 (see ICC-01/04-01/06-1281) that the information was nevertheless immaterial. The Trial Chamber, however, was not in a position to verify this assurance by the Prosecutor because it had not been given access to most of the documents in question.

The Appeals Chamber is on firm ground here. Lubanga’s effective control over the soldiers that did the recruiting will be a critical issue at trial; the Pre-Trial Chamber confirmed the charges against him, in large part, because it concluded that there were reasonable grounds to believe that “he was the man with ultimate control of the policies/practices adopted and implemented by the UPC/FPLC… including enlistment into the FPLC, conscription into the FPLC and use by the FPLC to participate actively in hostilities of children under the age of fifteen.”  It is thus the Pre-Trial Chamber, not the Prosecutor, that needs to determine whether the non-disclosed information is material.

In terms of Lubanga’s release, the Appeals Chamber’s decision is obviously intended to buy the Prosecutor more time to convince the UN to waive the confidentiality agreement.  Here is the relevant paragaph (37) of the release decision, from which Judge Pikis dissented, arguing that Lubanga should be released immediately:

A conditional stay is neither an acquittal nor a final termination of the proceedings, but may be lifted in appropriate circumstances (see above at paragraph 33). Therefore, the Court is not necessarily permanently barred from exercising jurisdiction in respect of the person concerned. The Trial Chamber expressly recognised this in stating that the stay it imposed was capable of being lifted in the future (see, for example, paragraphs 94 and 97 of the Decision to Stay the Proceedings). For that reason, once a Chamber has ordered a conditional stay of the proceedings, the unconditional release of the person concerned is not the inevitable consequence. Instead, the Chamber will have to consider all relevant circumstances and base its decision on release or detention on the criteria in articles 60 and 58 (1) of the Statute. In particular, the necessity of the continued detention (see article 58 (1) (b) of the Statute) will have to be assessed carefully. With specific reference to article 58 (1) (b) (i) of the Statute, the Chamber should take into account that the trial has been conditionally stayed, not permanently terminated. If the conditions for continued detention are not met, the Chamber will have to determine whether, in the particular circumstances of the case, release should be with or without conditions (see article 60 (2), third sentence, of the Statute). When deciding on detention or release (with or without conditions), the Chamber will have to consider, for example, whether further developments since the imposition of the conditional stay make it likely that the stay might be lifted in the not-too-distant future. At the same time, the Chamber must be vigilant that any continued detention would not be for an unreasonably long period of time, in breach of internationally recognised human rights… If a Chamber concludes that the continued detention, or the release only with conditions, is justified, it will have to review such a decision at short intervals.

What qualifies as the “not too distant” future, the majority doesn’t say.  It’s clear, though, that time is running out on the Prosecutor.  Stay tuned.