The Lubanga Case: A Demonstration of the International Criminal Court’s Commitment to Procedural Integrity

The Lubanga Case: A Demonstration of the International Criminal Court’s
Commitment to Procedural Integrity

By Sangitha McKenzie Millar
Research Associate, Citizens for Global Solutions

As the international community celebrates the 10^th anniversary of the creation of the International Criminal Court (ICC), some have expressed concern over the prosecution’s mishandling of evidence in a key case involving a Congolese warlord. The ICC, created by the Rome Statute of 1998, began prosecuting crimes committed in the Ituri region of the Congo after Congolese President Joseph Kabila asked the court to investigate war crimes in the area. The violence in Ituri has killed thousands and produced over 600,000 refugees. Congolese civilians suffered greatly at the hands of warring factions, which carried out massacres, torture, rape, and mutilation, and frequently used children as cannon fodder and sex slaves.

Thomas Lubanga, 45, was arrested in 2006 and is accused of kidnapping children as young as 7 and forcing them to become soldiers and sex slaves. He served as Commander in Chief of an Ituri militia group, Forces Patriotiques pour la Liberation du Congo (FPLC), but has denied the charges against him.

Lubanga’s case was set to start on June 23 but was halted due to concerns that prosecutors were withholding evidence from the defense. In July, ICC judges ruled that mishandling of the evidence meant that Lubanga could not receive a fair trial and ordered his release, but prosecutors have since appealed the ruling. As of mid-July 2008, Lubanga remains in custody pending the Court’s ruling on the appeal. Lubanga’s alleged victims have warned that freeing the former warlord could ignite a “fireball” in the volatile Ituri region.[1] The case has prompted criticism of the ICC, as well as of lead prosecutor Luis Moreno-Ocampo.

From a legal standpoint, the prosecutorial misconduct in the Lubanga case is essentially a violation of discovery, the formal process by which the prosecution discloses to the defense non-privileged information relevant to a criminal investigation prior to trial. Article 67 of the Rome Statute requires the prosecutor to allow the defense access to evidence in his possession that “tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.” ICC judges found that Moreno-Ocampo had incorrectly relied on a provision in Article 54 of the Statute, under which he may agree not to disclose confidential information obtained “solely for the purpose of generating new evidence.” The evidence in question consists of records by U.N. peacekeepers, although the U.N. is only one of seven or eight information-providers for the case against Lubanga.[2]

It’s also important to note that the withheld evidence does not speak to Lubanga’s actual innocence, but to his legal culpability for his actions. It is evidence that might support Lubanga’s defense by establishing that he had been mentally ill, intoxicated or under duress when kidnapping the children; that he acted in self-defense or had attempted to demobilize the child soldiers; or that his militia was under the control of other countries.[3] While this information is very relevant, especially in terms of mitigation, and undoubtedly should have been submitted to the defense, it’s important to note that he is not claiming actual innocence.

The fact is, discovery violations occur on a regular basis within many legal systems, even one as respected and sophisticated as the United States’ criminal justice system. The right to discovery in the U.S. was established by Brady v. Maryland (1963), wherein the U.S. Supreme Court ruled the failure to disclose relevant exculpatory information, or information that would tend to negate guilt, to be a violation of the defendant’s due process rights. The Court ruled that the prosecution must provide the defense with any evidence in its possession that is material to the defendant’s guilt or punishment.

However, an American criminal justice reform organization, The Justice Project, recently released a report illustrating the frequency of discovery violations within the United States. The report describes how restrictive state and federal discovery procedures can allow for vital evidence to be withheld in American courtrooms: “Discovery in criminal cases often does not include information on witnesses, police reports, or mitigating and aggravating evidence, all of which could affect the outcome of a trial, as well as lessen or increase the sentence imposed after a conviction. Where this evidence is discoverable, it is often too late in the process to be of any practical use to the defense…The record of wrongful convictions in the United States has repeatedly shown that exculpatory evidence can be withheld for long periods of time, forcing innocent individuals to spend years or decades in prison.”[4] The American Bar Association has also recommended reforms to discovery procedures, which have been largely ignored by state legislatures.

By no means should the discovery violations in the Lubanga case be taken lightly – pretrial discovery is a fundamental element of justice. However, prosecutorial mistakes made in the Lubanga case should not cast doubt on the legitimacy of the Court or threaten its existence. Even in the United States, home to the most developed criminal justice system in the world, “despite due process protections, discovery violations persist.”[5] What’s more, “prosecutors are almost never disciplined for Brady violations, even in the most blatant and easily provable cases.”[6]

It is yet to be determined whether or not Lubanga will be released and the charges against him dismissed, but his case presents a unique opportunity to examine the shortcomings of our own criminal justice system. Lubanga is one of several notorious war criminals currently before the ICC, and his case will likely set an important precedent with regard to handling of evidence and other procedures in current and future investigations.

Most importantly, the recent order of Lubanga’s release by ICC judges, and the Court’s stinging rebuke of the prosecution’s mishandling of the evidence, illustrates that the Court is holding itself to the highest legal and procedural standards, which may even surpass those of the American criminal justice system.