The suspension of the landmark war crimes case at the International Criminal Court (ICC) of Thomas Lubanga, who may walk free as a result, could hamper crucial efforts to end impunity in the powder keg Ituri region of the Democratic Republic of Congo (DRC), according to humanitarian and human rights officials.
If Lubanga, who is charged with forcibly recruiting children into his Ituri-based militia, were released from custody, “it would mean a failure by the international community to end the culture of impunity in Ituri," said one humanitarian official in Bunia, the main town in the northeastern region.
Lubanga’s Union des patriotes congolais (UPC) was one of several armed groups involved in a 1999-2003 inter-ethnic conflict in which some 50,000 people were killed. Delivering justice to the victims of this violence is widely recognised as a prerequisite for stability in Ituri, where firearms remain common.
Lubanga’s is the ICC’s first ever case. He was arrested and transferred to the custody of the ICC in The Hague in March 2006. His trial was scheduled to start on 23 June, 2008 but now a hearing has been scheduled for the following day to discuss his possible release.
"If you release Lubanga, then the rest of the militia leaders who have been arrested for similar offences might have to be released; and this does not augur well for the fragile peace and calm the region currently enjoys," the official said, asking not to be identified.
|Why did the ICC Trial Chamber suspend the case against Lubanga?|
"The Chamber came to the conclusion that the prosecution had incorrectly used Article 54 (3) (e) of the Rome Statute which allows the Prosecutor, exceptionally, to receive information or documents, on the condition of confidentiality, which are not for use at trial but solely for the purpose of generating new evidence. The Chamber concluded that this misuse has had the consequence that a significant body of exculpatory evidence has not been disclosed to the accused, thereby improperly inhibiting the opportunities for the accused to prepare his defence." – ICC statement
What does the prosecution have to say about this?
That it believed it fulfilled its disclosure obligations and has not withheld evidence, but that the judges have rendered a decision to the contrary.
The Office of the Prosecutor receives some information on a confidential basis – as is foreseen under the Rome Statute. It cannot disclose such information without the consent of information providers because the security if their personnel and their ability to work on the ground is at stake.
“The UN has a difficult mandate to fulfil on the ground; they operate in complex and often dangerous conditions. This is particularly true of the DRC, where UN personnel face risks every day. Under these difficult circumstances, the UN has nevertheless agreed to cooperate with the ICC to the best of their ability,” the OTP told IRIN.
What happens next?
The prosecution will lodge an appeal against the decision and in parallel try to find concrete solutions to reconcile the concerns of the judges against the protection of its sources. The Trial Chamber will hold a hearing on 24 June to consider Lubanga's release.
What are the implications for other ICC detainees?
Two other Ituri militia leaders are in ICC detention awaiting trial. Germain Katanga, and Mathieu Ngudjolo Chui are jointly accused of war crimes and crimes against humanity. This case is not as advanced as Lubanga's and it appears that the issue may be less stringent at this stage. Still, the same problem may arise later, at trial stage.
Background on the Ituri conflict
Disclosure vs. confidentiality
On 16 June, ICC judges ordered the suspension of Lubanga’s case because the prosecution declined to supply the defence with all of its documentation, some of which was exculpatory in nature. The prosecution argued that this information, some of which came from the UN, was provided on strict conditions of confidentiality and anonymity, in line with the Rome Statute that guides the court’s proceedings. (See ‘Explainer’ below) The prosecution, which plans to appeal the judges’ ruling, is adamant the decision does not spell the collapse of the case against Lubanga.
"The proceedings have not been terminated; they have been suspended pending the resolution of a technical problem," explained ICC Registrar, Silvana Arbia, who is currently in Kinshasa, DRC’s capital.
“There is a real problem of protecting witnesses and victims if unexpurgated and entire statements have to be given to the defence,” explained Merve Diakiese, a human rights lawyer in Kinshasa.
Given that the confidentiality problem only came to a head after two years of investigations, and just as Lubanga’s trial was set to start, “many people will question the professionalism and the ability of the ICC to carry out its mandate under the Rome Statutes,” he added.
ICC’s spokesman in Kinshasa, Paul Madidi, said the suspension demonstrated the independence of the court’s judges.
“If we recognise that the ICC prosecutor has his prerogatives, we must equally recognise that the accused also have their rights,” he said.
The International Federation for Human Rights (FIDH) expressed “profound disappointment” at the suspension.
"Considering victims’ strong expectations to see their cases heard at last before the International Criminal Court, we deeply hope that a judicial solution protecting both the right of the defence and the rights of victims to justice will be found, permitting the organisation of Thomas Lubanga’s trial," FIDH President, Souhayr Belhassen, said in a statement released 17 June.
Photo: ICC-CPI/Hans Hordijk
|Thomas Lubanga at his first appearance before the ICC in March 2006|
The view from Bunia
In Bunia itself, where some in the Hema ethnic community still see Lubanga as their champion, news of the suspension drew mixed reactions.
"The families of the children who were conscripted to fight expected a conviction," said Christian Lukusha, an official from a local human rights organisation.
"The victims [who] were there saw their property looted, their families killed [and] are waiting for justice and reparations," he added.
An official from a women’s group said: "A lot of ethnic kinsfolk were calling for his conviction but were afraid of demonstrating for fear of reprisal."
"Not everyone has been disarmed in Ituri. People are afraid of the guns," she added.
Photo: Anthony Morland/IRIN
|Troops of a European military mission in Bunia|
According to local journalist, Gabriel Mapendo, the news from The Hague prompted celebrations in one district of Bunia.
In Mudzi Pela, where the UPC still enjoys support, “we were woken up in the night by cries of joy and patriotic songs. The Hema have got it into their heads that their leader will be back soon,” he said.
For David Mugnier, Central African Project Director at the International Crisis Group (ICG), it is too soon to say whether the ICC judges’ decision means Lubanga will walk free.
But if he were released, “it would be a serious blow to the credibility of the court. It would be very unfortunate to suspend a trial because of lack of cooperation between the UN and the ICC,” Mugnier told IRIN in Nairobi.
And if only Lubanga, and not other Ituri war crimes suspects from rival ethnic groups, were to be spared an ICC trial, “it could be seen as a bias against other communities. Some will feel protected, others targeted, and this could lead to conspiracy theories on the ground,” added Mugnier.
In a report published in May 2008, ICG warned that “inter-communal reconciliation remains superficial [in Ituri] and local courts are still unable to fight in a satisfactory manner against impunity.”