Somone Who Comes between One Person and Another: Lubanga, Local Cooperation and the Right to a Fair Trial

[Christian De Vos is a PhD researcher at the Grotius Centre for International Legal Studies. The author may be contacted at c.m.devos [at] cdh.leidenuniv.nl]

Having recently embarked on a multi-year project that seeks to interrogate the possibilities for ‘local ownership’ in the context of the International Criminal Court (ICC), my article approaches the concept through the lens of locally-based informants and so-called intermediaries.  Intermediaries, in particular, have emerged as a challenge for the ICC insofar as they often act as the Court’s first (or most frequent) point of contact with potential witnesses, victims, and affected
communities, though they are not formally in the Court’s employ.  In the Court’s words, an
intermediary is ‘someone who comes between one person and another; who facilitates contact or provides a link between one of the organs or units of the Court or Counsel on the one hand, and victims, witnesses … or affected communities more broadly on the other.’

While intermediaries raise a host of issues for the Court, I examine the challenges that the Office of the Prosecutor (‘OTP’) and, by extension, Trial Chamber I, have faced in the context of the trial of Thomas Lubanga, which is the ICC’s first and, five years on, longest running case to date.  I focus in particular on two decisions by the Trial and Appeals Chambers, both of which underscore the practical and normative challenges that engagement with local actors presents for the Hague-based Court.  In the first decision, the Trial Chamber concluded in 2008 that Lubanga’s fair trial rights
had been compromised by the OTP’s failure to disclose the sources of potentially exculpatory evidence it had collected on the condition of confidentiality from various local informants, largely by the United Nations mission based in the Democratic Republic of Congo (MONUSCO) but also from other local NGOs.  As a result, the Trial Chamber stayed the proceedings on the eve of Lubanga’s trial, leading to almost a year’s delay from when it was scheduled to start.  Some commentators have also attributed MONUSCO’s initial refusal to make public the evidence in question to the ICC’s
failure to build better relations with the peacekeeping mission.[i]

Similarly, the Trial Chamber imposed a second stay in 2010 — later reversed on appeal —
because of the Prosecution’s refusal to disclose the identity of an intermediary, the veracity of whose testimony, amongst others’, had been called into question.  In that matter, concerns
were raised as to the motivations and credibility of certain intermediaries, leading the Chamber to question the OTP as to its working methods on the ground and ‘the system employed by the prosecution for identifying potential witnesses.’  Proceedings were further postponed when Lubanga moved to dismiss the case against him, again on the basis of the contested role of intermediaries.
Though Lubanga’s motion was denied, the issue may yet affect the final verdict, as the Trial Chamber made clear that it would ‘in due course … reach final conclusions on the alleged impact of the involvement of the intermediaries on the evidence in [the] case, as well as on the wider alleged
prosecutorial misconduct or negligence.’

These controversies, I argue, underscore the unique challenges that the ICC confronts
in carrying out its work from afar.  In particular, the Lubanga decisions raise three issues worthy of reflection.  First, they point to a gradual shift away from an adversarial process — where disclosure relies largely on trust in the parties themselves — to a model more common in civil law jurisdictions, where the Chamber itself is the ultimate arbiter in managing disclosure.   Second, both of the decisions reinforce the importance of the OTP doing its utmost to pre-emptively avoid tensions between its obligations to maintain the confidentiality (and security) of its informants and intermediaries, and a defendant’s fair trial rights.  In Lubanga, disclosure of potentially exculpatory documents came quite late, complicating proceedings and contributing to tensions between the Prosecution and the bench.

Finally, the decisions that I highlight make clear how much the ICC depends on local informants and intermediaries: they perform essential tasks without which the  Court could not carry out its duties. At the same time, the precise nature of intermediaries’ relationship with the Court — whether voluntary or contractual — is often fraught with complex and occasionally competing motives at play.  Greater clarity on the standards that should govern the ICC’s, and particularly the OTP’s, relationship with third parties is essential, so as to avoid the sort of challenges to veracity and motive that have characterized the Lubanga proceedings.  Notably, the Court has made some strides in this area (Draft Guidelines on intermediaries are currently under review), but confusion remains.  The need for this clarity is not only pragmatic — in order to secure convictions — but normative, so that local actors are treated, as much as they can be, as partners in the Court’s work.

The full article may be accessed here.