New York refuses that several documents given to the prosecution under the seal of confidentiality be transmitted to the judges and the defence, as agreed upon notably in several cooperation agreements signed between the prosecution and the United Nations Mission in Congo (MONUC).
In addition to these agreements, the ICC Statute provides that confidentiality measures can be agreed upon, which the prosecutor “commits not to reveal at any stage of the proceedings the documents and information which it obtained under the condition that they remain confidential and are only used to obtain new evidence, unless the one who provided the information allows its disclosure”. But the prosecutor would have used this clause in an abusive manner, it is considered. In addition, he obviously did not use the information contained in these documents to obtain other sources of confirmations likely to be recorded as evidence in the trial.
The UN is only agreeing to reveal under very precise conditions, communicated to the Chamber on 23 June, but denounced by the defence and the civil parties during the hearing of 24 June.
In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on “UN territory”, to consult the documents.
They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.
During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that “the defence will not accept summaries, which cannot be evidence”.
“If you accept’’, she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not. The confidential pieces would contain evidence likely to have an “impact” on “the innocence or the guilt” of the defendant, wrote the judges in their decision of 13 June, as certain pieces of evidence would show, inter alia, that Lubanga did not have full control on his militia, which would have been “under the control of Uganda, Rwanda and other countries”, according to the magistrates.
For Mrs Mabille, the refusal of the UN raises other questions. To accept these conditions, she argued, would amount to accepting “what the UN wants us to think on its perception of the war in Congo and in Ituri.
The UN was in Congo for years, she added, which superior interests is it hiding so that we do not have access to the documents? ” The same consternation was expressed by the civil parties.
For Carine Bapita, “the victims wonder who are the military authorities of the country and the neighbouring countries who are being protected by the United Nations?” But she warns, however, on the consequences of the release of the defendant, which would lead to “scores being settled”. “The consequences of such a release on the ground, each one of us will have to answer before history!” she pleaded. “Be assured there will be revenge, Mr. President”.
The status of Lubanga remains ambiguous. The Union of Congolese Patriots, Lubanga’s movement, congratulated the judges on their decision. Prayer vigils would be organized by his followers in Bunia, according to Luc Walleyn, a lawyer of another civil party.
The prosecution has asked for the authorization to appeal the decision of 13 June, asserting that it could not be sanctioned so harshly for its errors.
According to Mrs. Mabille, since the decision to “stop the proceedings … the arrest warrant no longer has a legal basis”.
SM/PB/MM/SC