On March 2, 2011, Trial Chamber I issued its written decision denying the defense request to permanently stay the trial of Thomas Lubanga Dyilo for war crimes and immediately release him for prosecutorial abuse of process. The judges gave their oral decision on February 23. There is no indication whether the defense will appeal the decision or when the trial might resume. Lubanga is charged with the conscription, recruitment, and use of child soldiers as commander of the Patriotic Forces for the Liberation of Congo (FPLC) that waged war in the Democratic Republic of Congo (DRC) from 1999 to 2003, leaving at least 50,000 people dead in the Ituri district alone. An estimated four million people have died throughout the DRC between 1998 and 2003 in what has been called Africa’s “world war.”

The trial’s detour into hearing evidence on alleged abuse of process was initiated when witness 15, presented by the prosecution as a former child soldier, dramatically reversed his testimony, claiming he lied after being coached by an intermediary for the prosecution. The prosecution used intermediaries to locate potential witnesses during the time that war was raging and prosecution investigators were unable to travel in the DRC. The defense charged that other intermediaries also provided the prosecution with false witnesses. The court ordered that they be called to give evidence on the issue.

In its December 2010 submission to the court, following months of hearings, the defense accused the prosecution of rendering a fair trial impossible due to “serious and irretrievable prejudice to the judicial process of seeking and establishing the truth.” Defense arguments addressed five main elements: 1) the role of four intermediaries; 2) the prosecutor’s negligence in failing to properly investigate evidence he introduced which, at least in part, was erroneous or mendacious; 3) the prosecutor’s deliberate failure to discharge his disclosure and inspection obligations; 4) the part played by certain participating victims; 5) failure on the prosecutor’s part to act fairly and impartially.

In its legal analysis, the judges noted that the Rome Statute does not address abuse of process. The Trial Chamber quoted the Appeals Chamber to the effect that termination of a trial for abuse of process is a “drastic” remedy, requiring that it be “impossible to piece together the constituent elements of a fair trial.” The decision went on: “Not every example of suggested prosecutorial misconduct will lead to a permanent stay of the proceedings; instead, this is a matter of fact and degree.” Situations where a stay may be required include the use of torture and the nondisclosure of significant exculpatory evidence. The court must weigh the nature of abuse against the seriousness of the crimes, the judges wrote.

The Chamber developed a two-part test to determine if the high threshold had been reached: 1) would it be odious or repugnant to the administration of justice to allow the proceedings to continue, or 2) have the accused’s rights been breached to the extent that a fair trial has been rendered impossible.

Examining allegations that the intermediaries persuaded witnesses to lie, the Trial Chamber pointed out, “[A]t least since January 2010 the position of some of the intermediaries has been a key element of the accused’s defence.” As a result, the Court made a number of decisions to ensure the accused was able to address issues involving the intermediaries. The intermediaries were called to testify; investigators who were principally responsible for them testified; and the prosecution disclosed all relevant materials. The Trial Chamber concluded, “The Chamber is unpersuaded, in these circumstances, that ‘the accused’s rights have been breached to the extent that a fair trial has been rendered impossible.’” Nor would it be “odious” or “repugnant” to the administration of justice to allow the trial to go forward, the Chamber said, noting this is a matter of judicial discretion. The judges emphasized their ability to decide issues of fact at the appropriate time, noting that “this application only relates to one, albeit significant, area of a wider case.” Moreover, they are capable of assessing any impact of the intermediaries on the evidence and reaching final conclusions on alleged prosecutorial misconduct or negligence – after the close of the case. “It would be a disproportionate reaction to discontinue the proceedings at this juncture,” the judges concluded.

The most serious allegation about intermediaries was that the prosecution knowingly or unwittingly became the Congolese Government’s instrument to get rid of political opponents such as Thomas Lubanga. In raising this issue, defense counsel pointed out that the Congolese President, Joseph Kabila, initiated Lubanga’s arrest and transfer to the ICC. In this one instance where the Court analyzed the evidence, it found it lacking. Even if intermediary 316 was involved with the DRC government and was passing false information to the ICC to secure Lubanga’s conviction, it does not follow that the prosecution was aware of being manipulated, the court said.

The Trial Chamber applied the same two part test to the remaining defense allegations – failure to investigate the reliability of evidence, failure to promptly disclose material, collaboration between participating victims, and breach of prosecutorial obligations of fairness and impartiality – and reached the same conclusion. One of the defense allegations concerned identity theft by two witnesses at the instigation of a third witness. The defense contended it was part of a concerted plan by someone close to President Kabila to hijack the judicial process for political ends. Another concerned an interview and a novel written by consultants to the prosecution which displayed bias against the accused. The Court quoted its earlier response to the interview, indicating its disapproval but noting it is wholly uninfluenced by “these misleading and inaccurate remarks.” The court held that none of the fact situations raised by the defense, even if true, would render the accused’s right to a fair trial impossible, nor render continuation of the process repugnant or odious. All factual issues will be decided at the end of the trial.

In the judgment reached after all evidence has been presented and final arguments made, the Trial Chamber could still decide that the prosecution abused the process in certain particulars. If it has, the Chamber must still decide whether and to what extent it has an impact on the evidence. In its written decision, the Chamber emphasized its ability to make these judgments, contrary to the defense position. The decision also reflects the Chamber’s view of the seriousness of the charges which deserve a full hearing and should only be dismissed when there is no question that the process has been rendered unfair and cannot be redeemed. It is not only the accused who has a right to a fair trial. The victims and the general public also have an interest in a fair determination of the guilt or innocence of one accused of such egregious harm.