The quiet, procedural death of the International Criminal Court?

Tomorrow, the first man expected to stand trial before the ICC – Thomas Lubanga - may simply walk away to board the first plane out of the Hague, following three years in prison and without his trial having ever officially commenced.

This staggering outcome follows from a practice of the Prosecutor’s office that the Trial Chamber described in a decision on 13 June as a “wholesale and serious abuse”. Without accusing the Prosecutor’s office of bad faith, it seems clear that a procedural device for collecting evidence under conditions of anonymity in exceptional and limited circumstances became the Prosecutor’s tool of first resort. As a result, the possibility of running a fair trial was fatally compromised.

Basically, in order to gather evidence, the Prosecutor’s office promised suppliers of information that the evidence they turned over would be kept confidential – even from ICC judges. The intention seems to have been that if any information was identified as needed to run the trial, the prosecution would go back to the suppliers and negotiate for waiver of confidentiality.

The flaws in this approach were:

1. this is not what Article 54 of ICC Statute, on a plain reading, allows the prosecutor to do (they are limited to using confidentiality only to gather leads which might point to evidence for use in the trial);
2. it meant the prosecution was not in control of the evidence, the witnesses were (and for “the witnesses” read “the United Nations”); and
3. it left the prosecution wide open to a defence allegation that they were withholding potentially exculpatory evidence that they were obliged to disclose, thus preventing a fair trial.
   

Inevitably, the defence did make that argument and it had some justification. The Prosecution claimed, as a result of confidentiality agreements concluded largely with the UN, that it was beyond its power to put some 207 potentially relevant documents into evidence. Of these 153 were UN documents.

The prosecution’s argument boiled down to “well, in fact, nothing we’re withholding would materially aid the defence or alternative evidence is available, so it doesn’t matter.” The Trial Chamber, quite properly, asserted that it was for the Court, not the Prosecutor, to weigh the evidence and the defendant was entitled to all potentially relevant prosecution material, not a selection of it.

I have more sympathy for the prosecution argument that UN and NGO witnesses in the field work under difficult conditions and confidentiality was needed to secure their cooperation (para 26). However, the Prosecutor’s office made a damaging concession (para 72), saying in its own evidence:

Of course, there was never any intention ... that these materials were received only for lead [finding] purposes. The point was to obtain these materials as quickly as possible for the sake of the ongoing investigation and then to allow the Office of the Prosecutor to identify the materials it wishes to use as evidence and then seek permission.

That is, the Prosecutor took the view that he could grant confidentiality first, and ask hard questions later. The result was not only a clear breach of the Statute but he also lost the practical power to control evidence, effectively putting UN legal counsel in charge of deciding what would go before the ICC.

As a result the Trial Chamber found that “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.” This is utterly scathing judicial language.

The Chamber stayed the trial indefinitely and will hear an application for Lubanga’s release tomorrow. Unless the Prosecutor secures a wholesale about-face from the UN on the confidentiality of 200 odd documents, procedural justice seems to demand the defendant be released.

The Office of the Prosecutor must be a very unhappy workplace at present. If these are the realities of gathering evidence in the ICC, the prospects of any cases ever commencing seem pretty slim.