IBA welcomes Trial Chamber’s decision to lift stay of proceedings in the Lubanga case

03 November 2008

The International Bar Association (IBA) today welcomes the decision of Trial Chamber I of the International Criminal Court (ICC) to lift the stay of proceedings in the case against Thomas Lubanga Dyilo. The IBA looks forward to the commencement of the ICC’s first trial, tentatively scheduled to commence on 26 January 2009.

The Lubanga case has been extensively delayed due to the prosecution’s inability to disclose potentially exculpatory material to the defence, obtained subject to confidentiality agreements concluded with third party information providers such as the United Nations. The Chamber’s inability to review the confidential material led to a stay of proceedings; however, due to recent concessions by information providers allowing the Chamber unrestricted access to the documents, the judges have now determined that the basis for the stay ‘has fallen away’.

The IBA recently expressed grave concern that the protracted delay in the Lubanga case negatively impacted the perception of the ICC. Following yesterday’s decision, Justice Richard Goldstone, Co-Chair of the IBA Human Rights Institute and former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda comments, ‘The Trial Chamber’s decision to set an early trial date after reviewing the confidential material is a welcome development and consistent with the International Criminal Court’s commitment to both the fair and expeditious conduct of proceedings.’

In its oral decision, the Trial Chamber ordered the prosecution to ‘completely’ disclose the material to the defence by Thursday 4 November. On this issue, Lorraine Smith, IBA Programme Manager (ICC) notes, ‘While we welcome the continuation of the proceedings, we note that the Chamber’s oral decision did not indicate the precise modalities for disclosure. We await the Chamber’s written decision which will hopefully provide more clarity concerning whether the defendant will have access to all the confidential material in a form that allows him to effectively prepare his defence.’

For further information please contact:

Romana St. Matthew - Daniel
International Bar Association
Press Office
10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom

Direct Line: +44 (0)20 7691 6837
Main Office: +44 (0)20 7691 6868
Mobile: +44 (0)7940 731915
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E-mail: romana.daniel@int-bar.org
Website: www.ibanet.org

Notes to the Editor


During the initial phases of its investigations in the Democratic Republic of Congo, the prosecution obtained over 50 per cent of its evidentiary material from information providers such as the United Nations (UN) under confidentiality agreements and was unable, by the terms of the agreements, to disclose the documents. Difficulties arose in the Lubanga case due to the fact that a large number of these documents were potentially exculpatory – that is, material which tended to show the innocence of the accused, mitigate his guilt or may affect the credibility of prosecution evidence.

Trial Chamber (TC) I of the International Criminal Court imposed a stay of proceedings in the case of Thomas Lubanga Dyilo on 13 June 2008 on the basis that the prosecution’s misuse of Article 54(3) (e) of the Rome Statute and inability to obtain consent to disclose potentially exculpatory confidential material to the defence made it impossible to ‘piece together the constituent elements of a fair trial’. In particular, the Chamber concluded that its inability to review the documents prevented it from safeguarding the fairness of the proceedings.

Article 54(3)(e) of the Rome Statute (the Statute) provides that the prosecutor ‘may agree not to disclose, at any stage of the proceedings, documents or information that he obtains on condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents. The prosecution is however also bound by Article 67(2) of the Statute to disclose potentially exculpatory material to the defence as soon as practicable.’

The TC granted Thomas Lubanga unconditional release on 2 July 2008 but the order was suspended by the Appeals Chamber (AC). The AC later confirmed the TC’s decision to stay the proceedings. The AC ruled that ‘whenever the prosecutor relies on Article 54 (3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the prosecutor has agreed and the requirements of a fair trial.’ In a separate decision, the AC reversed the TC’s decision to unconditionally release Mr Lubanga, directing the TC to reconsider this issue.

On 14 October 2008 the prosecutor submitted a filing to the TC indicating that the information providers, including the UN, were prepared to comply with the Chamber’s stated pre-conditions for review. The TC’s decision to lift the stay of proceedings followed its review of the confidential documents. The Chamber also decided that Mr Lubanga will remain in custody pending his trial on 26 January 2009.

For additional information, please see the latest IBA monitoring report

The ICC under Scrutiny: Assessing recent developments at the International Criminal Court


or contact:

Lorraine Smith
IBA Programme Manager (ICC)
International Bar Association
ICC Monitoring and Outreach Programme
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
Tel: +31 (0)70 302 2859
Fax: +44 (0)207 691 6544
Email: lorraine.smith@int-bar.org
Website: www.ibanet.org