Profound Disappointment Following the Suspension of the Lubanga Case

The International Federation for Human Rights (FIDH), and its member organisations in the Democratic Republic of Congo (DRC), the Association africaine des droits de l’Homme, Groupe Lotus and Ligue des électeurs, express their profound disappointment following the decision of Trial Chamber I of the International Criminal Court (ICC), to stay the proceedings against Thomas Lubanga Dyilo. [1]

The judges concluded that the trial of Thomas Lubanga Dyilo for the conscription, enlistment and use of children under the age of 15 in hostilities, the first trial of the ICC scheduled to begin 23rd June, could not take place and that "the trial process in all respects will remain at a halt". It is expected that the Prosecutor will make an appeal. A hearing set for 24 June 2008 will be dedicated to the eventual release of Thomas Lubanga.

The Chamber concluded that the right to a fair trial could not be guaranteed due to the "abusive use" by the Office of the Prosecutor of article 54(3)(e) of the ICC Statute. This provision, which authorises the Prosecutor to obtain documents on condition of confidentiality, would have been used beyond the scope of the exceptional situations for which it is authorised. The Office of the Prosecutor tried numerous times, without success, to obtain the authorisation of the information providers (in particular the United Nations) to lift confidentiality. The judges thought that in this particular case this decision resulted in the impossibility of disclosing close to 200 exculpatory materials, and thus did not permit Thomas Lubanga to prepare his defence properly.

"Considering victims’ strong expectations to see their cases heard at last before the International Criminal Court, we deeply hope that a judicial solution protecting both the right of the defence and the rights of victims to justice will be found permitting the organisation of Thomas Lubanga’s trial," declared Souhayr Belhassen, President of FIDH.

FIDH and its member organisations call for:
- the Registry and the Office of the Prosecutor to intensify their outreach activities on the ground in order to explain the consequences of this decision to victims;
- the Office of the Prosecutor to find a fair balance between the need to protect sources and the respect of the rights of the accused and other participants in the proceedings;
- the United Nations and the other information providers to reconsider the possibility of lifting confidentiality.

Background Information

Thomas Lubanga is the leader of the Union of Congolese Patriots, a militia from Ituri, DRC. Accused of having enlisted children under 15 years of age and of having forced them to participate actively in hostilities from 2002-2003, he was the first person to be handed over to the ICC, in March 2006. Following a so-called "confirmation of charges" hearing, the charges against him were confirmed in January 2007. The beginning of his trial – the first of the ICC – had been postponed numerous times and finally set for 23 June 2008.

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