Stay Lifted in the Lubanga Trial (Updated)

by Kevin Jon Heller

The AP is reporting that the Trial Chamber lifted the stay “after the prosecution agreed to let judges review confidential material it received from the United Nations.”  No additional information is available yet; it will be interesting to see what the Chamber does about the documents that are still protected by confidentiality agreements — an issue I discussed here.

UPDATE: According to Galway’s Niamh Hayes, who was at the status conference, “[t]he prosecution has made a complete turn-around and agreed to make all the confidential information available, seemingly without restriction, to both the Chamber and the defence. The Chamber have already had the chance to review it, and it will be released to the defence later this week.”  If so, this is a significant victory for the defense (although I’m sure it would have been happier if the Court just let Lubagna walk) and an even more significant victory for the Trial Chamber, which will have left no doubt that it — and not the OTP — has the final say over what evidence the defense is entitled to receive.

2 Responses

  1. Perhaps by way of further update, the transcript of the hearing is now available on the website.  I highly doubt that the OTP will be giving the Defence unrestricted access given that the most recent OTP filings still foresee that material has to be withheld from them, and also from reading the following statement by the Chamber (at Tuesday’s hearing):

    The Judges have now reviewed each document with care, along with the extent of the proposed disclosure on the part of the Prosecution for each of them and the suggested approach that should be taken if it is strictly necessary for some redactions to be retained.”

    We should, in any case, have the Chamber’s full decision pretty soon and all will become clear.  But I have a feeling that this debacle may not be over quite yet..

  2. Dear Kevin,

    I was a bit taken aback to see my name on the website! I also hadn’t expected to be quoted on Prof Schabas’s blog. I was in the Hague and happened to be able to attend the status conference, I must admit I didn’t expect there to be such a development. The impression I got from Judge Fulford’s comments about the disclosure of information, prior to his announcing that the stay had been lifted, was that the material had been made available in relatively complete form to the Chamber and would be released to the defence late last week. I don’t recall him discussing significant limitations on the amount or content of material which would be released to the defence (except a slightly acerbic suggestion that the Prosecution could put it in a more “user-friendly” format), although obviously we may have to wait for the full written decision to get more precise detail. There was some brief discussion with the Victim representatives about whether and when any of the material would be made available to them, although nothing concrete seemed to be decided.

    The most significant impression I got though – having watched Judge Fulford demolish the prosecution’s excuses over the live internet feed on a number of occasions – is that he finally appears to be satisfied with the extent and circumstances of the disclosure. Whether they have the slightest hope of sticking to the proposed start date of the trial on 26th January is another matter….

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