The judges decided on 13 June to stop the proceedings brought against the former leader of the Union of Congolese Patriots (UPC), a militia from Ituri, in eastern Democratic Republic of Congo (DRC). A hearing was due to be held on 24 June to debate the release of the defendant, imprisoned in Hague, The Netherlands, since March 2006 and where he was to be tried.
For the ICC judges, the trial could not be "fair" if part of the evidence in the possession of the prosecutor is not revealed to the defence or the judges. This evidence could have an "impact" on "the innocence or the guilt" of Thomas Lubanga, estimated the judges whose decision rests on the refusal of the United Nations to lift the confidentiality on 156 documents given to the prosecutor. Evidence without which the prosecutor "would not have been able to open an investigation in DRC", stated the prosecutor during one of the preliminary hearings.
During the last hearings, the judges had proposed that the evidence in question, if they were not transmitted to the defence, should be made available to the Chamber.
But the UN maintained its refusal to lift the secrecy on these documents, provided essentially by the UN Mission in the Congo (MONUC).
The judges said that they would have been capable to try the character of this evidence, which would comprise elements likely to clear the defendant or to reduce his responsibility. They could show that "children voluntarily rejoined" the forces of Lubanga, that the defendant would also have taken part in the demobilization of the child soldiers during the conflict, or that he would have been "intoxicated", which could have deteriorated his ability to control or comprehend the illegal character of his behaviour.
During a hearing held on 10 June, one of Lubanga's lawyers, Jean-Marie Biju-Duval, had angered the United Nations. "The files of the UN should be open to all,'' he argued. The real scandal is not on the side of the prosecutor but on the side of the UN which are creating an obstacle for the information intended for judicial truth to reach the judges and the defence.
"Why does the UN want to deprive Mr. Lubanga of his defence? he questioned. What do they want to protect? Who are the powers, the interests that are making the UN say: we do not want those elements to be revealed to the defence. Reasons of international states can not be put ahead of justice. There is only one solution: to realize that the trial is impossible". The judges retained this argument.
Unless the UN finally decides to lift the confidentiality on this evidence, or that the prosecutor appeals the decision, a new hearing should be held on 24 June to debate the release of the defendant.
SM/PB/MM/SC
© Hirondelle News Agency