ICC—DRC Situation/Lubanga Update

There have been several pre‑trial developments in the case against Thomas Lubanga, the first criminal matter to be heard by the International Criminal Court (ICC). The matter is now is the discovery phase.

Although many issues have not been resolved fully at this point, the following is a brief overview of some recent pre‑trial decisions relating to discovery and other pre‑trial matters.

Administrative Decisions
The Registrar has appointed Belgian criminal defense attorney Jean Flamme, the “duty counsel” who handled Mr. Lubanga’s initial appearance, to represent him throughout the criminal trial process.^[1] Mr. Lubanga was also declared to be indigent for the purposes of mounting his defense. Therefore, the Court will provide funds for his defense in accordance with Article 67 of the Rome Statute. ^[2]

Issue: Defense Access to Prosecutor’s Documents Concerning the Situation in the Republic of the Congo (DRC)
Defense counsel has requested unrestricted access to all evidence in the Prosecutor’s file concerning the Situation in the DRC, invoking in part the statutory right of the defendant to exculpatory evidence under Article 67(2).^[3]

The Prosecution has countered by arguing that a defendant has a right only to the evidence pertaining to his case, not to the entire investigation into the referred situation. In addition, there is an ongoing debate generally about how the obligation to disclose potentially exculpatory evidence under the provisions of the Rome Statute and the ICC Rules of Procedure and Evidence should be interpreted at the pre‑trial phase.

On March 30, the Pre‑Trial Chamber held that the defense did not have the right to unredacted portions of the documents relating to the arrest warrant.^[4] The defense has filed a motion appealing this ruling and has requested an extension of time for appealing the arrest warrant (see below).^[5]

It is clear from the rulings so far that the Pre‑Trial Chamber is dealing with some of the more significant challenges to interpreting the Court’s Rules and Regulations in piecemeal fashion in order to avoid impeding the trial process with endless and abstract legal debate.

Issue: Reclassification of Documents Concerning the Situation in the DRC
Another part of the battle over access to discovery concerns how the Prosecution classifies the documents it files in the course of an investigation.

Access to the documents gathered by the Prosecution in the course of an investigation into a referred situation is governed by the Levels of Confidentiality specified in the Regulation14 of the Regulations of the Registry.^[6] The Prosecution has defined these levels as they pertain to its own filings as follows:

• Under seal—ex parte—Prosecution only: Access to the Pre‑Trial Chamber and the Prosecution only;
• Under seal: Access to the Pre‑Trial Chamber, Prosecution and Defence only…and subjected to specific handling codes;
• Confidential: Access to the Pre‑Trial Chamber, Prosecution, Defence and other possible participants only; and
• Public: Access to the Pre‑Trial Chamber, Prosecution, Defence, other possible participants and the public.^[7]

In its decision of April 21, the Pre‑Trial Chamber held that the term “ex parte” could only be used to limit access to parties specifically named on the classification label, not to the Prosecution per se.^[8] It also held that the terms “under seal” and “confidential” were virtually synonymous with regard to handling concerns.^[9]

Issue: Arrest Warrant
The defense is appealing the validity of the arrest warrant executed against Mr. Lubanga, citing this flaw as a basis for dismissing the case as inadmissible before the ICC. Specifically, the defense argues that the admissibility requirement that the DRC be unwilling or unable to prosecute the crimes itself under Article 17(1) of the Rome Statute has not been met because there were no local laws criminalizing the alleged events at the time they were said to have taken place.^[10]

Therefore, the DRC cannot be considered to be “acting in relation to the specific case before the Court, since the arrest warrants in question do not refer to the criminal responsibility entailed in,” the recruitment of child soldiers as a war crimes.^[11]

The Pre‑Trial Chamber, Judge Sylvia Steiner presiding as single judge, will hold a hearing in camera to consider the Prosecution’s arguments for the validity of the arrest warrant this Tuesday, May 2.^[12]

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[1] Designation de Me. Jean Flamme Comme Conseil de la Defense de M. Thomas Lubanga Dyilo, Prosecutor v. Lubanga, ICC‑01/04‑01/06, Apr. 13, 2006.
[2] Id.
[3] Rome Statute, art. 67(2).
[4] Brief Filed Under Regulation 64 in Support of the Appeal of 27 March 2006, ICC‑01/04‑01/06, Mar. 27, 2006 [hereinafter Brief]. See also Decision Requesting Further Observations from the Prosecutor and the Duty Counsel for the Defence on the System of Disclosure, ICC‑01/04‑01/06, Mar. 27, 2006.
[5] Brief supra note 4.
[6] Regulations of the Registry, ICC‑BD/03‑01‑06, Regulation 14.
[7] Prosecution’s Observations Concerning the Reclassification of Non‑Public Documents in the Record of the Situation in the Democratic Republic of the Congo, ICC‑01/04, Mar. 30, 2006.
[8] Decision Reclassifying Certain Documents in the Record of the Situation in the Democratic Republic of the Congo, ICC‑01/04‑01/06, Apr. 21, 2006.
[9] Id.
[10] Appeal by Duty Counsel for the Defence Against Pre‑Trial Chamber I’s Decision of 10 February 2006 on the Prosecutor’s Application for a Warrant of Arrest, Article 58, ICC‑01/04‑01/06, Mar. 24, 2006.
[11] Brief supra note 4.
[12] Decisions on the Registrar’s request for extension of his mandate in relation to the execution of the arrest warrant against Mr. Thomas Lubanga Dyilo, ICC‑01/04‑01/06, April 26, 2006.