1. Who is Thomas Lubanga?

Thomas Lubanga was the president of the Union of Congolese Patriots (UPC), a militia group purporting to further the interests of the Hema ethnic group in the Ituri region of northeastern Democratic Republic of Congo (DRC). This group has been implicated in many serious abuses including ethnic massacres, torture, and rape.

2. What charges did the International Criminal Court (ICC) prosecutor bring against Lubanga?

Lubanga is charged with the war crimes of enlisting and conscripting children under the age of 15 years as soldiers and using them to actively participate in hostilities in 2002-2003. He was arrested in the Congo on those charges and brought into ICC custody in March 2006. In January 2007, Pre-Trial Chamber I confirmed the charges against him based on its determination that there was sufficient evidence against Lubanga to go forward with a trial. After several delays, the trial was supposed to begin on June 23.

Appeals chamber decision of October 21, 2008 on Trial Chamber I's "stay" of the Lubanga trial

3. What did the Appeals Chamber recently decide about the trial?

In its decision on October 21, 2008, the Appeals Chamber unanimously confirmed Trial Chamber I's decision of June 13 to stay trial proceedings against Thomas Lubanga. The trial chamber had decided to suspend the trial because the prosecution was unable to provide to the court and the defense over 200 documents that it had obtained confidentially under article 54(3)(e) of the Rome Statute, "solely for the purpose of generating new evidence." The documents in question contained potentially exculpatory information as identified by the Office of the Prosecutor, however, and information relevant to the preparation of the defense. Without disclosure of these documents, the trial chamber was concerned that Lubanga would not receive a fair trial. On June 23, the prosecution filed an appeal of Trial Chamber I's decision to stay the proceedings, arguing among other things that suspending the proceedings was a "premature and erroneous remedy."

4. If the "stay" remains in effect, does that mean that Lubanga will be released?

No. In a separate decision on October 21, a majority of judges of the Appeals Chamber found that the trial chamber made an error in a decision on July 2 ordering Lubanga's release. According to the majority, "if a chamber imposes a conditional stay of the proceedings, the unconditional release of the accused person is not the ‘inevitable' consequence and ‘the only correct course' to take." The Appeals Chamber sent the matter back to Trial Chamber I for review. The prosecution, the defense, and the victim participants were told by Trial Chamber I to submit observations on Lubanga's pre-trial detention by October 31.

5. If the "stay" remains in effect, what does this mean for the Lubanga trial?

Since the stay was imposed, there have been a number of important developments regarding disclosure of potentially exculpatory documents. While appealing the trial chamber's decision to suspend the trial, the Office of the Prosecutor continued to work with the United Nations and other information providers to meet the conditions established by Trial Chamber I to lift the stay. On October 13, the prosecution informed the trial chamber that it was able to provide full access to all of the 200-plus documents to the court, including the Appeals Chamber. The prosecution had to submit all of the documents to the trial chamber by October 22. It is now up to the judges to review this material to determine what may be exculpatory and what must be disclosed to the defense. A decision on whether the stay will be lifted-and whether the trial will "restart"-is expected in the coming weeks.

6. Does the Appeals Chamber's decision to maintain the "stay" of the Lubanga trial mean that in the future, the prosecution can no longer collect information confidentially under article 54(3)(e) of the Rome State?

Information collected confidentially under article 54(3)(e) can give the prosecution valuable leads to start its investigations. This assistance is especially important since the prosecution must often conduct its investigations under difficult circumstances of ongoing conflict or instability.

On October 21, the Appeals Chamber unanimously affirmed that the prosecution can only rely on article 54(3)(e) of the Statute to generate new evidence. When using this provision, the prosecution must keep in mind its obligations under the Rome Statute-including those relating to disclosure-and apply the provision in a way that will allow the court to resolve the potential tension between the need to maintain confidentiality and the requirements of a fair trial. If the prosecution obtains potentially exculpatory material under article 54(3)(e) of the Statute, the material must be communicated to the trial chamber in order to make the final assessment as to its disclosure.

7. After reviewing the documents, can the judges simply order the prosecution to disclose certain documents considered essential for the defense, even if they contain confidential information?

No. According to the Appeals Chamber's October 21 decision on the stay of the proceedings, "the Trial Chamber (as well as any other Chamber of this Court, including this Appeals Chamber) will have to respect the confidentiality agreements and cannot order the disclosure of the material to the defense without the prior consent of the information provider."

Trial chamber's decision of September 3, 2008 refusing to lift the "stay"

8. What is the current status of the Lubanga case?

In its decision of September 3, 2008, Trial Chamber I rejected a prosecution's application filed on July 10, 2008 to lift the stay of proceedings in the trial of Thomas Lubanga. In that earlier decision, the trial chamber unanimously decided to stay the proceedings against Lubanga-therefore suspending the International Criminal Court's first-ever trial- because the prosecution was unable to release more than 200 documents containing potentially "exculpatory" information that it gathered during its investigation. The court defines "exculpatory" material as documentation that shows or tends to show the innocence of the accused, that mitigates the guilt of the accused, or information which may affect the credibility of the prosecution evidence. According to the judges, "the right to a fair trial-which is without doubt a fundamental right-includes an entitlement to disclosure of exculpatory material."

The information at issue was collected under article 54(3)(e) of the Rome Statute. Under this provision, the prosecution can agree to receive documents or information on a confidential basis "solely for the purpose of generating new evidence." This confidential information is supposed to be a "springboard" for the prosecution to collect new evidence in its investigations that can be used at trial. If the prosecution wants to use any of this information at trial-or to fulfill its obligation to disclose exculpatory material collected under this provision to the defense-it must get permission from the source. The sources at issue had previously refused to consent to the disclosure of the potentially exculpatory information in the prosecutor's possession.

9. Why did the trial chamber issue a decision on September 3, 2008?

While any decision regarding Lubanga's release depends on the outcome of the decision of the appeals chamber, in the meantime, the prosecution has been working to disclose more than 200 documents containing exculpatory information in a manner that would address the trial chamber's concerns and would "restart" the Lubanga trial. The trial chamber retained the power to "lift" the stay that it had imposed at any time, provided certain conditions were met. The trial chamber decided that the prosecutor's proposals did not meet its conditions to do so.

10. Why did the trial chamber reject the prosecutor's application to lift the "stay"?

The trial chamber felt that there were still too many restrictions on the potentially exculpatory documents to ensure that Lubanga would receive a fair trial. The more than 200 documents at issue were provided to the Office of the Prosecutor by the United Nations (UN) and nongovernmental organizations (NGOs) and could not be disclosed without the information providers' consent.

Of the roughly 200 documents, 152 were from the UN. Of these, the UN was imposing restrictions-in terms of the trial chamber's review of the documents and their disclosure to the defense-on 99 of them. Of the remaining more than 50 documents from NGOs, disclosure is currently being contemplated with respect to only 3 documents. It was uncertain how many of the remaining NGO documents would be disclosed and in what form.

11. Why cannot the information providers simply turn over the information?

As mentioned earlier, the information at issue was collected under article 54(3)(e) of the Rome Statute, which means that if the material is to be used in any way at trial-even if it is exculpatory-the prosecution must get permission from the source. Requiring consent from the information providers helps to ensure, for example, that these sources are not unknowingly or unwillingly exposed to safety risks because of their cooperation with the ICC. This is particularly relevant for sources that operate in countries where the ICC is carrying out investigations.

In its decision, the trial chamber stated that "responsibility for the continuing problems [...] does not rest with the information providers, who have sought to discharge their respective mandates. As the Trial Chamber has previously observed, the United Nations and the NGOs entered into the relevant agreements in good faith, and thereafter have sought to assist the court to the extent that is consistent with their individual responsibilities."

Trial chamber's decision of June 13, 2008 to "stay" the proceedings in the Lubanga case

12. Why is the trial against Lubanga not going ahead on June 23 as scheduled?

The judges of the Trial Chamber unanimously decided to "stay" the proceedings against Lubanga-meaning that in all respects, the trial has been halted-because the prosecution has been unable to release more than 200 documents containing "exculpatory" information that it gathered during its investigation. The court defines "exculpatory" material as documentation that shows or tends to show the innocence of the accused, that mitigates the guilt of the accused, or information which may affect the credibility of the prosecution evidence. According to the judges, "the right to a fair trial-which is without doubt a fundamental right-includes an entitlement to disclosure of exculpatory material." 

13. Why cannot the prosecution simply turn this information over to the defense?

This information was collected under article 54(3)(e) of the Rome Statute. Under this provision, the prosecution can agree to receive documents or information on a confidential basis "solely for the purpose of generating new evidence." This confidential information is supposed to be a "springboard" for the prosecution to collect new evidence in its investigations that can be used at trial. If the prosecution wants to use any of this information at trial, it must get permission from the source.

As stated above, the prosecution has an obligation to disclose all exculpatory information that it has, even that which was collected confidentially. In the Lubanga case, the prosecution has in its possession more than 200 documents collected under article 54(3)(e) that could be considered exculpatory and that cannot be shared with either the judges or the defense. Some of the information providers-including the United Nations-have refused to disclose the confidential information that they provided to the judges and the defense. 

More generally, in its decision, the Trial Chamber criticized the prosecution's "excessive use" of article 54(3)(e) in collecting information in its investigations. The prosecution has also used this provision to collect information that incriminates Lubanga-meaning it may show his guilt-which it wants to use in the trial. Again, to do so, it needs permission from the information providers, many of whom have refused. 

Requiring consent from the providers to use the information at trial helps to ensure, for example, that these sources are not unknowingly or unwillingly exposed to safety risks because of their cooperation with the ICC. This is particularly relevant for sources that operate in countries where the ICC is carrying out investigations.

14. Why is this information so important for the defense's case?

In building its case, the defense is supposed to conduct its own investigations, and if a defendant is indigent, the court's legal aid system includes a budget so that his defense team has the means to do so. At the same time, however, the prosecutor has an obligation to collect exculpatory information in its investigations and to provide this information to the defense under the Rome Statute.[1] The prosecution has been given considerable resources (in comparison with the defense) to fulfill these important obligations. 

15. If article 54(3)(e) jeopardizes a defendant's fair trial rights, why use it?

Article 54(3)(e) does not compromise the defendant's fair trial rights if it is used in a limited way, and in fact it can be an important source of information for the ICC. Even though the "springboard" information obtained under article 54(3)(e) cannot automatically be used at trial, it can give the prosecution valuable leads to start its investigations. This assistance is especially important since the prosecution must often conduct its investigations under difficult circumstances of ongoing conflict or instability.

16. Does this mean that Lubanga has been acquitted?

Lubanga cannot be acquitted without a trial. 

17. What does this mean for the victims of Lubanga's alleged crimes?

The Trial Chamber's decision has caused significant confusion and disappointment among affected communities in the Ituri district of northeastern Congo, who were anxiously expecting the beginning of Lubanga's trial. It is absolutely essential that the court launch a targeted outreach campaign as soon as possible to explain this latest development and to answer questions about its implications.
 
Obviously, if the trial does not go ahead, the victims of Lubanga's alleged crimes will be denied the opportunity of seeing him brought to justice. This includes victims who were accepted to participate in the proceedings and victims seeking reparations against him. At the same time, however, Thomas Lubanga's right to a fair trial cannot be compromised. Indeed, justice is meaningless if it is not dispensed fairly.


[1] Rome Statute of the International Criminal Court (Rome Statute), UN Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002. See articles 54(1)(a) and 67(2).