Accused of war crimes for having enlisted children within the armed wing of UPC, Lubanga has been held at the Court since March 2006.
But since 13 June, the case has been suspended because of the refusal by the United Nations to agree to lift the confidentiality on certain documents given to the prosecution within the framework of its investigation.
According to the judges, these documents could affect the guilt or the innocence of the defendant. In their decision to release the defendant, the judges considered that “a fair trial is impossible” and that the detention of Lubanga is no longer justified. “It would be illegal” they wrote, to place the defendant in preventive detention or release him on parole.
During a hearing held on 24 June, and bearing on the release of Lubanga, the civil parties had alerted the Chamber of the consequences of such a decision on the future of Ituri. The judges affirmed to have taken into account “the potentially vulnerable position of the victims” and underlined “to have given all its weight to the fears and the possible consequences” of such a decision to release.
But the concerns of the civil parties were not upheld by the judges. The case could, however, know other shocks since the three judges believed that “the validity of the arrest warrant remains unchanged”, and that its issuance was “legal”, taking into account the fact that “there were reasons to believe that the defendant had committed various crimes”.
The stay of the proceeding “does not call into question” its validity they considered, as opposed to what the defence argued, “because it is nothing more than the direct result of this impossibility of considering the defendant in a fair way. ” These questions of confidentiality also put the prosecutor in difficulty in the case relating to Mathieu Ngudjolo and Germain Katanga
In that case, the judges had considered that the prosecutor had used the clauses wrongly, allowing him to protect certain sources. According to the rules of the Court, documents obtained under the seal of the confidentiality must make it possible to the prosecutor to constitute his case by opening investigations to confirm the allegations obtained from a protected initial source
PB/MM/SC