The ICC Stays Lubanga’s Prosecution — and May Let Him Walk…

In what can only be described as a stunning development, Trial Chamber I has stayed Thomas Lubanga Dyilo’s trial because of the Prosecutor’s failure to disclose exculpatory evidence to the defense. Indeed, the decision seems to indicate that unless the Prosecutor reverses course and agrees to disclose the evidence, the Trial Chamber is prepared to dismiss the charges and allow Lubanga to go free. A hearing on that issue is scheduled for June 24.

The Trial Chamber’s decision turns on the interpretation of Article 54(3)(e) of the Rome Statute, which provides as follows:

Duties and powers of the Prosecutor with respect to investigations
[…]
3. The Prosecutor may:
[…]
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents.

During the early stages of his investigation, the Prosecutor entered into dozens of Article 54 agreements with various information providers, including the UN. Because of those agreements, the Prosecutor now finds himself unable to disclose more than 200 potentially-exculpatory documents not only to the defense, but even to the Trial Chamber itself:

64. The prosecution is unable to disclose any of these items of evidence to the accused, in full or in a redacted form. Furthermore, save for a limited number of documents (32) that have been supplied to the Chamber by six unidentified information-providers in redacted form, the prosecution (given the terms of the agreements) is unable to show them to the Chamber. This is because the information-providers do not consent to the judges viewing copies of the original materials (in the majority of instances the Chamber cannot be shown the documents at all), notwithstanding an undertaking which has been given by the judges to uphold the confidential status of the documents or information, unless consent is given by the information-providers for their wider distribution.

In defense of his non-disclosure, the Prosecutor argued that “[d]espite the requirements of Article 54(3)(e) that confidentiality agreements are to be used solely for the purpose of generating new evidence… evidence which it is anticipated may be used during the trial can also be obtained pursuant to Article 54(3)(e).” The Trial Chamber rejected that interpretation of Article 54 in no uncertain terms:

72. The prosecution has given Article 54(3)(e) a broad and incorrect interpretation: it has utilised the provision routinely, in inappropriate circumstances, instead of resorting to it exceptionally, when particular, restrictive circumstances apply. Indeed, the prosecution conceded in open court that agreements reached under Article 54(3) (e) have been used generally to gather information, unconnected with its springboard or lead potential.

[snip]

73. Therefore, although the Chamber does not have the information necessary to analyse the circumstances in which each of the individual documents was supplied to the prosecution, the overall picture is clear: the prosecution’s general approach has been to use Article 54(3)(e) to obtain a wide range of materials under the cloak of confidentiality, in order to identify from those materials evidence to be used at trial (having obtained the information provider’s consent). This is the exact opposite of the proper use of the provision, which is, exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to “lead” to new evidence. The prosecution’s approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended to allow the prosecution to receive evidence confidentially, in very restrictive circumstances. The logic of the prosecution’s position is that all of the evidence that it obtains from information-providers can be the subject of Article 54(3)(e) agreements.

The Trial Chamber was particularly aggrieved by the Prosecutor’s refusal to disclose the confidential information to the bench. As the Chamber pointed out, it — not the Prosecutor — is ultimately responsible for ensuring that the defendant receives a fair trial:

88. Although the prosecution, as a first stage in this procedure, must make the initial decision as to the exculpatory value or effect of any piece of evidence under Article 67(2) (“evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”), once this threshold is passed and it is accepted that the material has, potentially, an exculpatory effect, only the Chamber can make a decision on non-disclosure if exceptional circumstances so require. If it is proposed that evidence of this kind should be withheld, it is to be put before the judges in its original form and in its entirety. The ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges. In this case, the Bench has been prevented from assessing for itself the impact on the fairness of these proceedings should the evidence remain undisclosed,142 and the approach of the prosecution means, inter alia, that for the purposes of Article 67(2), the Chamber could never, “in case of doubt”, make a decision (because it will be unable to view the underlying material).

The Trial Chamber thus held — reluctantly, because it knows that its decision may well lead to Lubanga’s release — that it had no other choice but to stay the proceedings:

91. This is an international criminal court, with the sole purpose of trying those charged with the “most serious crimes of concern to the international community as a whole” and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary – indeed, inevitable – that the proceedings should be stayed. It would be wholly wrong for a criminal court to begin, or to continue, a trial once it has become clear that the inevitable conclusion in the final judgment will be that the proceedings are vitiated because of unfairness which will not be rectified. In this instance, in its filing of 9 June 2008, the prosecution went no further than raising the possibility that the Chamber may be provided at some stage in the future with no more than incomplete and insufficient materials. There is, therefore, no prospect, on the information before the Chamber, that the present deficiencies will be corrected.

As mentioned above, a hearing on the consequences of the Prosecutor’s failure to disclose the exculpatory evidence is scheduled for June 24. The Prosecutor has two choices: disclose the evidence or face the very real possibility that Lubanga will go free.

This is clearly a landmark decision. It would obviously be a tragedy if Lubanga was released — but there was no way that the Trial Chamber could approve of the Prosecutor’s woefully overbroad use of Article 54, given the vast amount of exculpatory evidence that would thereby have gone undisclosed. The Prosecutor’s decision to use Article 54 in that way is a mystery, as is his decision to promise the information providers that he would not even disclose the confidential information to the Trial Chamber. Given today’s decision, I doubt he will make either mistake again.