CASE NOTE

Case Note: Prosecutor v Thomas Lubanga Dyilo

PROSECUTOR V LUBANGA

‘SOMEONE WHO COMES BETWEEN ONE PERSON AND

ANOTHER’:1 LUBANGA, LOCAL COOPERATION AND THE
RIGHT TO A FAIR TRIAL
CONTENTS

I Introduction............................................................................................................... 1
II Evidence Obtained through Local Informants .......................................................... 4
III Intermediaries at Trial............................................................................................... 8
IV An Evolving Disclosure Regime and the Cooperation Imperative......................... 13
A Towards a Judicially-Managed Process...................................................... 13
B Disclosure Obligations for the Office of the Prosecutor ............................ 15
C Informants, Intermediaries and the Court: Which Way Forward? ............. 17
V Conclusion .............................................................................................................. 19

I INTRODUCTION
In January 2006, the International Criminal Court (‘ICC’ or ‘the Court’)
issued an arrest warrant for Thomas Lubanga Dyilo, the former president of the
Union of Congolese Patriots (‘UPC’), charging him with war crimes for
conscripting and enlisting child soldiers and for using them to further the armed
conflict that has gripped the Ituri region of the Democratic Republic of Congo
(‘DRC’) for the better part of the past decade.2 DRC authorities had arrested
Lubanga in March 2005 and charged him with genocide, crimes against
humanity and war crimes under the country’s military code; however, following
the issuance of the ICC warrant, Lubanga was transferred from Kinshasa to The
Hague to face trial. He would become the Court’s first defendant.
Over five years later, few would argue that the ICC’s first case has been an
exercise in swift justice. The proceedings have been characterised by numerous
postponements, and the Office of the Prosecutor (‘OTP’ or ‘the Prosecution’) has
endured criticism from the beginning for what many victims’ rights groups have
argued was an overly narrow indictment that should have included charges of
rape and sexual violence, in a country where the rates of both are amongst the

1 International Criminal Court, Draft Guidelines Governing the Relations between the Court
and Intermediaries (1 October 2010) 5 (‘Draft Guidelines’).
2 Prosecutor v Lubanga (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber
I, Case No ICC-01/04-01/06-2-tEN, 10 February 2006). The UPC was a militia group that
purported to defend the interests of the Hema ethnic group in the DRC’s Ituri region. While
there have been many phases to the Ituri conflict, the most recent armed clashes occurred
between 1999 and 2003; however, because the ICC only has temporal jurisdiction over
crimes committed after 2002, Lubanga was charged with child soldier conscription from
September 2002 through August 2003. See Prosecutor v Lubanga (Decision on the
Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No
ICC-01/04-01/06-803-tEN, 29 January 2007) [410] (‘Confirmation of Charges’).

1
2 Melbourne Journal of International Law [Vol 12

highest in the world.3 The roll out of the Court’s outreach program in the DRC
has also been criticised for failing to adequately explain to victim participants (or
to the local population more generally) the meaning and significance of the
events of the trial as they unfolded.4
But perhaps the most notable aspect of the trial has been the breakdown
in relations — recently described by one commentator as ‘ugly and
unhealthy’5 — between the judges of Trial Chamber I (presided over by Judge
Adrian Fulford) and the OTP. At the core of these controversies, and the subject
of this case note, is the delicate balance between the right of defendants to a fair
trial and the Prosecution’s need to protect the identity of various locally-based
informants (including, notably, United Nations staff members and
non-governmental organisations) who have provided information and evidentiary
leads to the OTP. Of particular concern is the Court’s relationship with
‘intermediary’ informants who, while not ICC employees, often act as informal
agents of the Court. While no definition of ‘intermediary’ is found in the Rome
Statute6 or the Rules of Procedure and Evidence7 and the precise scope of the
term is still under discussion, the Court currently defines
[t]he essence of the notion of an intermediary [as] someone who comes between
one person and another; who facilitates contact or provides a link between one of
the organs or units of the Court or Counsel on the one hand, and victims,
witnesses … or affected communities more broadly on the other.8

3 Victims’ frustration over the limited scope of charges came to a head when, in May 2009,
legal representatives filed a request before Trial Chamber I seeking a change in the legal
characterisation of facts, arguing, on the basis of evidence already presented, that the
charges against Lubanga should be supplemented to include inhuman/cruel treatment and
sexual slavery. Although a divided Trial Chamber granted the application, the Appeals
Chamber reversed it, holding that reg 55 may not be used to circumvent the Prosecutor’s
charging document. See Prosecutor v Lubanga (Judgment on the Appeals of Mr Lubanga
Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 Entitled
‘Decision Giving Notice to the Parties and Participants That the Legal Characterisation of
the Facts May Be Subject to Change in Accordance with Regulation 55(2) of the
Regulations of the Court’) (International Criminal Court, Appeals Chamber, Case No
ICC-01/04-01/06 OA 15 OA 16, 8 December 2009).
4 See, eg, Human Rights Watch, ‘ICC: Congo Ruling Victory for Justice’ (Press Release, 18
November 2008):
The suspension of the trial caused significant confusion and disappointment among
affected communities in the Ituri district of northeastern Congo, where people were
awaiting the start of trial. Lubanga’s supporters in Ituri have also sought to use the
suspension as proof of Lubanga’s innocence.
See also REDRESS, ‘Victims Express Relief at Decision to Resume First War Crimes Trial
at the International Criminal Court’ (Press Release, 8 October 2010) quoting a local activist:
‘Here in Ituri, we couldn’t understand how a trial of such an importance could have been
stopped on a procedural matter … there is a real need for more information’.
5 William A Schabas, quoted in Marlise Simons, ‘For International Criminal Court,
Frustration and Missteps in Its First Trial’, The New York Times (New York), 22 November
2010, A12. According to Professor Schabas: ‘The whole trial has been a nightmare since the
disputes between judges and the prosecutor began in 2008 … There appears almost a
breakdown between the two sides’.
6 Rome Statute of the International Criminal Court, opened for signature 17 July 1991, 2187
UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’).
7 International Criminal Court, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3
(adopted 9 September 2002) (‘ICC Rules of Procedure’).
8 Draft Guidelines, above n 1, 5.
2011] Case Note: Prosecutor v Lubanga 3

Maintaining this balance between Lubanga’s right to a fair trial and the
confidentiality of the OTP’s interlocutors has bedevilled the proceedings, twice
leading to rulings by the Trial Chamber that the Prosecution’s failure, or refusal,
to disclose the identities of sources on which it relied had compromised
Lubanga’s fair trial rights and required his release. Though both of the decisions
to release Lubanga were later reversed on appeal, they are symptomatic of larger
tensions over the proper scope and application of the Court’s disclosure regime.
Moreover, they call into question the ICC’s ability to protect not only the
integrity of its trials but the cooperative regime that should govern its
relationships with local actors.
This case note proceeds in four parts. In its first and second parts, it details
two significant decisions by the Trial and Appeals Chambers of the ICC
concerning the Prosecution’s disclosure obligations as they relate to evidence
and testimony proffered at Lubanga’s trial. In the first case, the Trial Chamber
concluded that Lubanga’s fair trial rights had been irreparably compromised by
the OTP’s failure to disclose the sources of potentially exculpatory evidence it
had collected, on the condition of confidentiality, from various local informants
based in the DRC.9 As a result, the Trial Chamber stayed the proceedings on the
eve of Lubanga’s trial, leading to almost a year’s delay from when it was
scheduled to start. Similarly, in the second case, the Trial Chamber imposed a
stay — later reversed on appeal — because of the Prosecution’s refusal to
disclose the identity of an intermediary, the veracity of whose testimony,
amongst others, had been called into question.10
As will be discussed, both of these cases illustrate key issues presently
confronting the Court, including the degree to which the resolution of conflicts
between confidentiality and disclosure should be a judicially-managed process
and what sort of status intermediaries, in particular, should have with the Court
and its various organs. In its concluding section, this note contends that these
issues collectively underscore the need to establish a more formalised
relationship between the OTP and intermediaries, as well as local informants
more generally. Doing so would not only better clarify the duties and obligations
of the OTP to its local interlocutors, but could help to build a greater sense of
partnership between the Court in The Hague and the communities in whose name
it intervenes.

9 Prosecutor v Lubanga (Decision on the Consequences of Non-Disclosure of Exculpatory

Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the
Prosecution of the Accused, Together With Certain Other Issues Raised at the Status
Conference on 10 June 2008) (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01-06/1401, 13 June 2008) (‘Decision on the Consequences of Non-Disclosure
of Exculpatory Materials Covered by Article 54(3)(e) Agreements’).
10 Prosecutor v Lubanga (Decision on the Prosecution’s Urgent Request for Variation of the
Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings
Pending Further Consultations with the VWU) (International Criminal Court, Trial Chamber
I, Case No ICC-01/04-01/06-2517 Red, 8 July 2010) (‘Decision to Disclose the Identity of
Intermediary 143’).
4 Melbourne Journal of International Law [Vol 12

II EVIDENCE OBTAINED THROUGH LOCAL INFORMANTS

In June 2008, shortly before Lubanga’s trial was due to commence, the
proceedings came to an abrupt halt when the Trial Chamber determined that it
was ‘impossible to piece together the constituent elements of a fair trial’ after the
Prosecution revealed that it was unable to disclose potentially exculpatory
evidence it had been provided confidentially, largely by the UN but also from
other locally based NGOs in the DRC.11 Notably, while there was some
indication at Lubanga’s August 2006 Confirmation of Charges hearing that
certain documents containing potentially exculpatory evidence had not been
turned over,12 the Prosecution did not bring the issue to the Trial Chamber’s
attention until September 2007, nearly one year after the Pre-Trial Chamber had
confirmed charges.13 At that point, the OTP indicated that approximately 50
per cent of the evidence it had gathered in the DRC was obtained under
confidentiality agreements.14
This delay upset the Trial Chamber greatly. In what has since become a
number of admonishing orders directed at the Prosecution, the judges wrote:
from the moment the prosecution entered into the agreements and was thereafter
presented with exculpatory materials, it has been under an obligation to act in a
timely manner to lift the agreement in order to ensure a fair trial without undue
delay. Generally, the late requests by the prosecution to lift the confidentiality
agreements should not be allowed to endanger the accused’s right to be tried
without undue delay and to adequate time and facilities for preparation.15
With Lubanga’s rights at stake, the Trial Chamber ordered the Prosecution to
disclose all outstanding documents by December 2007, and that any redactions to
those documents were to be justified to the Court.16

11 Decision on the Consequences of Non-Disclosure of Exculpatory Materials covered by

Article 54(3)(e) Agreements (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01-06/1401, 13 June 2008) [91]–[93].
12 Confirmation of Charges (International Criminal Court, Pre-Trial Chamber I, Case No
ICC-01/04-01-06/803, 29 January 2007) [154].
13 Prosecutor v Lubanga (Prosecution’s Submission regarding the Subjects That Require
Early Determination: Trial Date, Languages to Be Used in the Proceedings,
Disclosure, and E-Court Protocol) (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01/06-951, 11 September 2007) [22]–[25].
14 Prosecutor v Lubanga (Transcript of Hearing) (International Criminal Court, Trial Chamber
I, Case No ICC-0104-0106-T-52-ENG, 1 October 2007) [12]–[22]. Although the
confidentiality agreements signed between the Prosecution and DRC informants are not
publicly available, for an example of one such agreement signed between the United
Kingdom and the OTP, see Exchange of Letters between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Prosecutor of the International
Criminal Court concerning the Provision of Information by the United Kingdom to the
Office of the Prosecutor, 2385 UNTS 415 (signed and entered into force 17 August 2005).
At no 1, pt II(7)(vi), this agreement notes, with respect to art 54(3)(e), that
[i]n the event that the OTP believes that the information provided on the condition of
confidentiality shows or tends to show the innocence of the accused, or to mitigate
the guilt of the accused … the OTP shall consult the UK and take all necessary steps
to resolve the matter by cooperative means.
15 Prosecutor v Lubanga (Decision regarding the Timing and Manner of Disclosure and
the Date of Trial) (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01/06-1019, 9 November 2007) [19] (‘Decision regarding the Date of Trial’).
16 Ibid [25]–[29].
2011] Case Note: Prosecutor v Lubanga 5

At issue for the Prosecution was its duty under art 54(3)(e) of the Rome
Statute, which provides, in part, that the OTP may agree
not to disclose, at any stage of the proceedings, documents or information that [it]
obtains on the condition of confidentiality and solely for the purpose of
generating new evidence, unless the provider of the information consents.17
Similarly, the cooperation agreement signed between the OTP and the UN
stipulates that the latter can
provide documents or information to the Prosecutor on condition of
confidentiality and solely for the purpose of generating new evidence and that
such documents or information shall not be disclosed to other organs of the court
or to third parties, at any stage of the proceedings or thereafter, without the
consent of the United Nations.18
Yet, the Prosecution has a second, competing statutory duty under art 67(2) of
the Rome Statute: it must disclose to the defence potentially exculpatory
evidence in its possession or control.19
Despite the OTP’s efforts to gain consent for disclosure, by March 2008 over
200 documents containing potentially exculpatory material still stood
undisclosed and Lubanga’s trial was postponed.20 Of the undisclosed documents,
information providers had refused to waive their confidentiality for 181 of the
potentially exculpatory items.21 The UN, in particular, which had been the main
provider of non-disclosed material to the OTP, was described as ‘unrelenting’ in
its demand for confidentiality, even refusing the Trial Chamber’s proposal to
review the evidence in question ex parte and in camera ‘to verify at least whether
the confidentiality agreements were in principle justified’.22 By mid-June, a large
number of documents still could not be disclosed, but the OTP argued that a fair
trial could nonetheless proceed since it had provided the defence with evidence
‘analogous’ to that kept under seal.23 However, in light of the OTP’s agreement
that it would not show the relevant documents to the Trial Chamber or defence
counsel, the judges were unable to independently verify that the alternative
material contained information equivalent to that contained in the confidential
documents.
The Prosecution’s arguments failed to persuade the Trial Chamber. While it
recognised the legitimate security concerns that disclosure posed, the Court

17 Rome Statute art 54(3)(e). Article 54(3)(f) further stipulates that the Prosecutor has an
affirmative duty to ‘[t]ake necessary measures, or request that necessary measures be taken,
to ensure the confidentiality of information, the protection of any person or the preservation
of evidence’.
18 Relationship Agreement between the United Nations and the International Criminal Court,
2283 UNTS 195 (signed and entered into force 4 October 2004) art 18(3).
19 Rome Statute art 67(2).
20 Decision regarding the Date of Trial (International Criminal Court, Trial Chamber I, Case
No ICC-01/04-01/06-1019, 9 November 2007) [29].
21 Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by
Article 54(3)(e) Agreements (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01-06/1401, 13 June 2008) [17].
22 Sabine Swoboda, ‘The ICC Disclosure Regime — A Defence Perspective’ (2008) 19
Criminal Law Forum 449, 469.
23 Prosecutor v Lubanga (Transcript of Hearing) (International Criminal Court, Trial Chamber
I, Case No ICC-01/04-01/06-T-89-ENG, 10 June 2008) [7]–[23].
6 Melbourne Journal of International Law [Vol 12

emphasised that the UN and other information-providers were ‘invited by the

[ICC] to enter into these [confidential] agreements’ and that, as a consequence,
they should have ‘approached this issue in good faith, bearing in mind their own
particular responsibilities and their respective mandates’.24 To that end, in June
2008, the Court announced that Lubanga’s trial would not proceed as planned
and that an indefinite stay of the proceedings was warranted because the
Prosecution had effectively abused the art 54(3)(e) provision by making ‘routine’
rather than ‘exceptional’ use of it in order to gather a ‘wide range of materials
under the cloak of confidentiality, in order to identify from those materials
evidence to be used at trial’.25 The right to a fair trial, the Court declared,
‘includes an entitlement to disclosure of exculpatory material’.26
In rejecting the OTP’s contention that it had furnished the defence with other
documents that had the same exculpatory value as the non-disclosed material, the
Trial Chamber also made clear that it was for the Court to make this assessment,
not the Prosecution.27 In its words:
what underpins the whole of [the] procedure [under art 67(2)] is that the Chamber
retains not only the opportunity but also the obligation of ensuring that any
exculpatory evidence or potentially exculpatory evidence over which there’s a
doubt is viewed by it so it makes a decision as to what is fair for the accused in
the trial. The difference between that and what is being proposed here is that the
Chamber, under the proposals [the Prosecutor] is making, is being entirely
excluded from the process.28
The Court went on to hold that, although it had not been divested of jurisdiction
by virtue of the stay, its indefinite duration required Lubanga’s unconditional
release.29
Faced with the potential collapse of its first case, the OTP subsequently
placed great pressure on its local informants to cooperate in the disclosure
process. Indeed, ‘[w]ithin two weeks of the Trial Chamber’s order to release the
accused, the prosecution was able to offer the Chamber all confidential
documents in unredacted form for an ex parte and in camera review’.30 During
this same period, the Appeals Chamber considered the Prosecution’s appeal. In
twin judgments issued in October 2008, the Appeals Chamber declined the
OTP’s request to overturn the stay, on the grounds that the Trial Chamber had

24 Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by

Article 54(3)(e) Agreements (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01-06/1401, 13 June 2008) [64].
25 Ibid [72]–[74].
26 Ibid [77].
27 Ibid [60].
28 Prosecutor v Lubanga (Transcript of Hearing) (International Criminal Court, Trial Chamber
I, Case No ICC-01/04-01/06-T-89-ENG, 10 June 2008) 8–9.
29 Prosecutor v Lubanga (Decision on the Release of Thomas Lubanga Dyilo) (International
Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-1418, 2 July 2008).
30 Swoboda, above n 22, 470. See also Prosecutor v Lubanga (Prosecution’s Application to
Lift the Stay of Proceedings) (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01/06-1431, 11 July 2008) [45], [49].
2011] Case Note: Prosecutor v Lubanga 7

not exceeded its ‘margin of appreciation’.31 In so doing, the Court affirmed that
the Prosecution may only rely on art 54(3)(e) for the purposes of generating new
evidence but that all Chambers would ‘have to respect the confidentiality
agreement concluded … under art 54(3)(e) and cannot order the disclosure of
material to the defence without the prior consent of the information provider’.32
When faced with such agreements, the Court — not the Prosecutor — would
have to decide whether the material in question must be disclosed and then, if the
provider of the material did not consent, ‘whether and, if so, which
counter-balancing measures can be taken to ensure that the rights of the accused
are protected and that the trial is fair, in spite of the non-disclosure of the
information’.33
By underscoring the Court’s responsibility in this determination, the Appeals
Chamber also expressed concern that
when accepting large amounts of material from the United Nations, the relevance
of which for future cases he could not appreciate at that time, the Prosecutor
agreed that he would not disclose the material even to the Chambers of the Court
without the consent of the information providers …34
thus preventing them ‘from assessing whether a fair trial could be held in spite of
the non-disclosure to the defence of certain documents, a role that the Chamber
has to fulfil pursuant to [art 67(2)]’.35 To that end, the Court further noted that
there was no reason to ‘fault [the Trial Chamber’s] assessment’ that, were the
documents in question not to be disclosed, ‘there would always have been a
lurking doubt as to whether [they] would have changed the course of the trial’.36
As to Lubanga’s release, which the Prosecution had argued was
‘disproportionate and premature’, the Appeals Chamber reversed the decision.37
It held that the decision was erroneous because it ‘failed to take the conditional
character of the stay it had imposed into account’, which led the Trial Chamber
to fail to consider all the options that were at its disposal and ‘to assume
erroneously that the unconditional release of [Lubanga] was “inevitable”’.38 In
this regard, the Appeals Chamber noted that arts 58(1) and 60(2) of the Rome
Statute permitted the Trial Chamber to order release with or without conditions;
thus, unconditional release was not the inevitable consequence of a stay of

31 Prosecutor v Lubanga (Judgment on the Appeal of the Prosecutor against the Decision of
Trial Chamber I Entitled ‘Decision on the Consequences of Non-Disclosure of Exculpatory
Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the
Proceedings of the Accused, Together with Certain Other Issues Raised at the Status
Conference on 10 June 2008’) (International Criminal Court, Appeals Chamber, Case No
ICC-01/04-01/06 OA 13, 21 October 2008) [84] (‘Lubanga 2008 Appeals Chamber
Judgment’).
32 Ibid [48].
33 Ibid.
34 Ibid [45] (emphasis added).
35 Ibid.
36 Ibid [97].
37 Prosecutor v Lubanga (Judgment on the Appeal of the Prosecutor against the Decision of
Trial Chamber I Entitled ‘Decision on the Release of Thomas Lubanga Dyilo’)
(International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 OA 12, 21
October 2008) [20].
38 Ibid [31].
8 Melbourne Journal of International Law [Vol 12

proceedings, nor was such a stay tantamount to permanent termination of the

proceedings or to Lubanga’s acquittal.39
Ultimately, within less than a month of the Appeals Chamber’s decision, the
Prosecution secured permission from the UN and other local providers to share
the outstanding exculpatory documents with the Trial Chamber.40 After assessing
these documents, and the Prosecutor’s proposed alternative forms of disclosure
(for example, redacted or summary versions), the Trial Chamber lifted the stay of
proceedings. In January 2009, Lubanga’s trial, at last, began.

III INTERMEDIARIES AT TRIAL

Having resolved the disclosure of evidence, the disclosure of intermediaries’
identities and their conduct in the field soon came to define Lubanga’s trial itself.
The first witness who testified against Lubanga raised eyebrows when he stated
that his initial statement was untrue and that ‘what he had said that morning did
not come from him but someone else’.41 Although this testimony was later
recanted, it laid the groundwork for the first arm of Lubanga’s defence strategy:
discrediting prosecution witnesses who claimed to have been child soldiers in the
UPC. Indeed, in December 2010, Lubanga’s defence counsel filed an
unsuccessful request to dismiss the case for abuse of process on the basis of the
contested role of intermediaries used by the Prosecutor.42
Before the application was filed, however, other testimonial irregularities led
the Trial Chamber to issue a Decision on Intermediaries in May 2010, in which
it opined that the ‘precise role of … intermediaries (together with the manner in
which they discharged their functions) [had] become an issue of major
importance in this trial’.43 The Court, while noting that it was ‘alive to the
potential risks to the intermediaries employed by the prosecution once their
identities are revealed to the accused’, found that ‘there [was] now a real basis
for concern as to the system employed by the prosecution for identifying

39 Ibid [32]–[42].
40 Prosecutor v Lubanga (Reasons for Oral Decision Lifting the Stay of Proceedings)
(International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-1644, 23 January
2009). The UN and the OTP also concluded an agreement during the course of the stay that
ultimately enabled the UN to agree to the sharing of the art 54(3)(e) documents with the
Trial Chamber. See Prosecutor v Lubanga (Prosecution’s Application for Trial Chamber
to Review All the Undisclosed Evidence Obtained from Information Providers)
(International Criminal Court, Public Court Records — Office of the Prosecutor, Case No
ICC-01/04-01/06-1478-Anx1, 14 October 2008) <http://www.icc-cpi.int/iccdocs/doc/
doc575485.pdf>. The agreement was put in place shortly before the Appeals Chamber
delivered its decision on art 54(3)(e) in October 2008, although that decision, as discussed,
effectively gave the UN the assurance it had been seeking, that is, that the Court was bound
to respect the confidentiality of such agreements and could not order the disclosure of any
material without the prior consent of the information provider.
41 Prosecutor v Lubanga (Redacted Decision on Intermediaries) (International Criminal Court,
Trial Chamber I, Case No ICC-01/04-01/06, 31 May 2010) [7] (‘Redacted Decision on
Intermediaries’), citing Prosecutor v Lubanga (Transcript of Hearing) (International
Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-T-110-Red-ENG CT WT, 28
January 2009). See also ‘DR Congo Warlord Witness Retracts’, BBC News Africa (online),
28 January 2009 <http://news.bbc.co.uk/2/hi/7857230.stm>.
42 Prosecutor v Lubanga (Requête de la Défense aux fins d’arrêt définitif des procédures)
(International Criminal Court, Case No ICC-01/04-01/06-2657-Conf, 10 December 2010).
43 Redacted Decision on Intermediaries (International Criminal Court, Trial Chamber I, Case
No ICC-01/04-01/06, 31 May 2010) [135]–[138].
2011] Case Note: Prosecutor v Lubanga 9

potential witnesses’.44 Accordingly, it ordered the disclosure of additional

information on three intermediaries — known by the pseudonyms ‘321’, ‘316’,
and ‘143’ — concerning allegations of their misconduct. Intermediaries 321 and
316, whose identities had already been revealed, were to ‘be called to deal with
the suggestions [from a range of witnesses] that they attempted to persuade one
or more individuals to give false evidence’.45 In the Trial Chamber’s view, their
testimony would be ‘likely to assist … in resolving … some of the extensive
conflicts in the evidence that have emerged … [and] the possible contacts
between intermediaries’.46
Notably, the Trial Chamber also ordered that the Prosecution present some of
its staff for questioning over their working methods on the ground, including
their ‘approach and the procedures applied to intermediaries’.47 As to 143, the
Chamber found that his identity should be disclosed to Lubanga and his defence
team, pending the implementation of necessary protective measures, as they were
entitled to research whether the allegedly untrue testimony was influenced by
‘untoward behaviour on [143’s] part’.48 Nothing less than the disclosure of 143’s
identity, the Chamber held, would ‘enable the defence to conduct necessary and
meaningful investigations and to secure a fair trial for the accused’.49
The order to disclose intermediary 143’s identity came to be the axis on which
the second stay of Lubanga’s proceedings turned. Although intermediary 143
initially consented to the protective scheme proposed by the ICC’s Victims and
Witnesses Unit (‘VWU’), he changed his mind at the last minute, asking for
additional guarantees.50 In response, at a hearing held on 6 July 2010, the Trial
Chamber again ordered that intermediary 143’s identity be disclosed, even
without all of the protective measures being in place, but only in a limited
manner, that is, to Lubanga, his defence team in The Hague, and to a resource
person working on behalf of the defence in the DRC.51 This disclosure was
ordered for the sole purpose of questioning another intermediary testifying at the
time whom, it was revealed, had also had contact with the same individual. The
Chamber thus considered that it was essential that the defence know the

44 Ibid [138].
45 Ibid [141].
46 Ibid.
47 Ibid [146].
48 Ibid [143].
49 Ibid. On the same day that the Trial Chamber issued the confidential version of its decision
on intermediaries, it also took umbrage with the conduct of a member of the prosecution
team — Ms Le Fraper du Hellen — who had given an interview where she suggested that
Lubanga had intimidated witnesses during the course of their testimony and vigorously
defended the use of intermediaries by the Prosecution. In condemning these remarks, the
trial judges noted that they ‘involved a clear imputation against the judges’, in so far as the
comments ‘seriously intruded’ on the role of the Chamber, and effectively ‘prejudged’ not
only the outcome of the abuse of process issue but the trial itself. While the Chamber
declined to take further action against Ms Le Fraper du Hellen, its decision, wherein it
expressed its ‘strongest disapproval of the interview’, signalled continued deterioration in
OTP–Chamber relations. See Prosecutor v Lubanga (Decision on the Press Interview
with Ms Le Fraper du Hellen) (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01/06, 12 May 2010).
50 See Human Rights Watch, ‘Recent Developments in the ICC Trial of Thomas Lubanga’
(Press Release, 16 July 2010).
51 See Prosecutor v Lubanga (Transcript of Hearing) (International Criminal Court, Trial
Chamber I, Case No ICC-01/04-01/06-T-310-RED, 6 July 2010) 63–5. See also ibid.
10 Melbourne Journal of International Law [Vol 12

individual’s identity in order to effectively cross-examine the witness.52 In

arriving at this decision, the Chamber relied on the fact that the VWU had
expressed confidence that the limited scope of the disclosure would not
jeopardise the witness’ safety.53
At the close of the hearing, the Prosecution stated its intention to appeal the
decision and that it would need the five-day delay provided in the ICC’s rules to
do so. The Trial Chamber suspended the order, stating that it would reconvene
the following morning to re-evaluate the parties’ positions. This proved
unsuccessful. On 7 July 2010 the Trial Chamber, unpersuaded by the OTP’s
arguments, once more ordered that intermediary 143’s identity be immediately
disclosed, notwithstanding the stated intention to appeal.54 The Prosecution,
however, refused to do so, insisting that, in spite of the VWU’s assessment, the
intermediary’s life may be at risk if his identity were revealed without the
protective measures having been implemented.
On 8 July 2010, the Trial Chamber ordered a stay of Lubanga’s trial on the
grounds of abuse of process.55 Notably, the Chamber imposed this stay not from
a motion that defence counsel had submitted, but on its own initiative. Referring
primarily to the Prosecutor in the singular, rather than the OTP generally, the
Chamber, in denying the Prosecutor’s request for more time, identified ‘two
concurrent but essentially different problems’.56 One problem was the
Prosecutor’s ‘unequivocal refusal to implement the repeated orders of this
Chamber to disclose the identity of 143 (in highly restricted circumstances,
determined by the Chamber)’, while the other revealed a ‘more profound and
enduring concern’.57 In the Chamber’s view:
by his refusal to implement the orders of the Chamber and in the filings set out
above, [the Prosecutor] has revealed that he does not consider that he is bound to
comply with judicial decisions that relate to a fundamental aspect of trial
proceedings, namely the protection of those who have been affected by their
interaction with the Court, in the sense that they have had dealings with the
prosecution. Essentially, for the issues covered by Article 68 in this way, he
appears to argue that the prosecution has autonomy to comply with, or disregard,
the orders of the Chamber, depending on its interpretation of its responsibilities
under the Rome Statute framework.58

52 Human Rights Watch, ‘Recent Developments in the ICC Trial of Thomas Lubanga’, above
n 50.
53 Decision to Disclose the Identity of Intermediary 143 (International Criminal Court, Trial
Chamber I, Case No ICC-01/04-01/06, 8 July 2010) [3], [17].
54 Prosecutor v Lubanga (Transcript of Hearing) (International Criminal Court, Trial Chamber
I, Case No ICC-01/04-01/06-T-311-RED, 7 July 2010) 15–22. See also Prosecutor v
Lubanga (Transcript of Hearing) (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01/06-T-313, 7 July 2010).
55 Decision to Disclose the Identity of Intermediary 143 (International Criminal Court, Trial
Chamber I, Case No ICC-01/04-01/06, 8 July 2010) [31].
56 Ibid [20]. Indeed, while this note generally refers to the Office of the Prosecutor, or the
Prosecution as a whole, it is worth noting that many of the Chamber’s decisions (particularly
throughout the course of the 2010 stay proceedings) have referred primarily to the
Prosecutor specifically, rather than the Prosecution generally.
57 Ibid [20]–[21].
58 Ibid [21].
2011] Case Note: Prosecutor v Lubanga 11

Accordingly, the Trial Chamber based the stay on two grounds: (1) that its order
to disclose intermediary 143’s identity had not been effected, even in the face of
the VWU’s assessment that its limited scope would not endanger him, and (2)
that the Prosecutor appeared to be operating in accordance with his own
interpretation of the Rome Statute, not the Court’s.59 In stark words, the trial
judges opined that the Prosecutor ‘decline[d] to be “checked” by the Chamber’.60
One week later, the Trial Chamber rendered an oral decision in which it
further ordered that Lubanga be released unconditionally.61 Speaking for the
Panel, Judge Fulford further indicated that, pursuant to art 71 of the Rome
Statute, the Trial Chamber would consider imposing sanctions on the Prosecutor
at some later time for his failure to implement the Chamber’s orders.62
Lubanga’s trial remained stayed for three more months, during which time the
Trial Chamber also rejected a motion by the Prosecution to interview pending
witnesses, despite its (belated) offer to disclose intermediary 143’s identity to the
defence.63
On 8 October 2010, the Appeals Chamber reversed the Trial Chamber’s
stay.64 In so doing, it stressed that a stay of proceedings was a ‘drastic remedy’
and should only be applied where it was ‘impossible to piece together the
constituent elements of a fair trial’.65 Notably, whereas the Trial Chamber had
stated that it would not consider sanctions against the Prosecutor until after
the appeal had been decided, the Appeals Chamber indicated that art 71, as
well as r 171(4) of the Rules of Procedure, explicitly provided for sanctions
where a party refuses to comply with an order of the Court.66 Thus, the Trial
Chamber should have sought to induce the OTP’s compliance through these
measures — such as imposing reprimands or pecuniary sanctions — before
resorting to the imposition of a stay.67
Despite its reversal, the Appeals Chamber made clear that the Trial Chamber
was ‘the ultimate guardian of a fair and expeditious trial’,68 and that its orders

59 Ibid [24]–[27].
60 Ibid [31].
61 Prosecutor v Lubanga (Transcript of Hearing) (International Criminal Court, Trial Chamber
I, Case No ICC-01/04-01/06-T-314, 15 July 2010) 17–22. The Chamber suspended the
order, however, pending the OTP’s finding of an appeal.
62 Ibid 22–3.
63 Prosecutor v Lubanga (Decision on the ‘Prosecution’s Application to Take Testimony while
Proceedings Are Stayed Pending Decision of the Appeals Chamber’) (International Criminal
Court, Trial Chamber I, Case No ICC-01/04-01/06, 24 September 2010) [20]–[23]
(‘Decision on the Prosecution’s Application to Take Testimony’).
64 Prosecutor v Lubanga (Judgment on the Appeal of the Prosecutor against the Decision of
Trial Chamber I of 8 July 2010 Entitled ‘Decision on the Prosecutor’s Urgent Request for
Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to
Stay Proceedings Pending Further Consultations with the VWU’) (International Criminal
Court, Appeals Chamber, Case No ICC-01/04-01/06 OA 18, 8 October 2010) (‘Lubanga
2010 Appeals Chamber Judgment’).
65 Ibid [55] quoting Prosecutor v Lubanga (Judgment on the Appeal of Mr Thomas Lubanga
Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court
Pursuant to Article 19(2)(a) of the Statute of 3 October 2006) (International Criminal Court,
Appeals Chamber, Case No ICC-01/04-01/06-772 OA 4, 14 December 2006) [39].
66 Ibid [59]–[60].
67 See, eg, ICC Rules of Procedure r 32.
68 Lubanga 2010 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 18, 8 October 2010) [47].
12 Melbourne Journal of International Law [Vol 12

were ‘binding … unless and until they are suspended, reversed or amended … or
their legal effects are otherwise modified’.69 Importantly, the Appeals Chamber
also emphasised that, where there is a conflict between the OTP’s perceptions of
its duties and the order of a Chamber, the latter must prevail; there was no
exception to this principle in so far as protective issues were concerned.70 On the
same day, the Appeals Chamber reversed the decision to release Lubanga.71 As
that order had been premised on a stay of proceedings, the Chamber held that the
reversal of the stay logically required the reversal of Lubanga’s release.72
Following the Appeals Chamber’s decision, proceedings were again
postponed after Lubanga formally filed his request to dismiss the case for abuse
of process. In a decision made public in March 2011, the Trial Chamber denied
the request.73 In it, the Court quoted the Appeals Chamber to the effect that
termination of a trial for abuse of process is a ‘drastic remedy’, to be ‘reserved
strictly for those cases that necessitate, on careful analysis, taking the extreme
and exceptional step of terminating the proceedings (as opposed to adopting
some lesser remedy)’.74 Thus, the Court concluded, ‘[n]ot every example of
suggested prosecutorial misconduct [would] lead to a permanent stay of the
proceedings’; rather, such accusations were ‘a matter of fact and degree’,
requiring that the nature of the alleged abuse be weighed against the seriousness
of the crimes.75 Accordingly, the Trial Chamber concluded that it would have to
ask two questions: (1) whether it would be odious or repugnant to the
administration of justice to allow the proceedings to continue, and (2) whether
the accused’s rights had been breached to the extent that a fair trial has been
rendered impossible.76
In both cases, the Trial Chamber determined that it was ‘unpersuaded, in these
circumstances, that “the accused’s rights have been breached to the extent that a
fair trial has been rendered impossible”’.77 In so doing, the Chamber emphasised
that it could, ‘in due course … reach final conclusions on the alleged impact of
the involvement of the intermediaries on the evidence in this case, as well as on
the wider alleged prosecutorial misconduct or negligence’.78 In other words, the
Court concluded, ‘it would be a disproportionate reaction to discontinue the
proceedings at this juncture’.79

69 Ibid [48].
70 Ibid [54].
71 Prosecutor v Lubanga (Judgment on the Appeal of the Prosecutor against the Oral Decision
of Trial Chamber I of 15 July 2010 to Release Thomas Lubanga Dyilo) (International
Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 OA 17, 8 October 2010).
72 Ibid [23]–[24].
73 Prosecutor v Lubanga (Redacted Decision on the ‘Defence Application Seeking a
Permanent Stay of the Proceedings’) (International Criminal Court, Trial Chamber I, Case
No ICC-01/04-01/06, 7 March 2011).
74 Ibid [168].
75 Ibid [195].
76 Ibid [166].
77 Ibid [188].
78 Ibid [198].
79 Ibid [197].
2011] Case Note: Prosecutor v Lubanga 13

IV AN EVOLVING DISCLOSURE REGIME AND THE COOPERATION IMPERATIVE

While Lubanga’s trial continues, the decisions described above raise three
critical issues worthy of reflection: (1) the degree to which conflicts between
confidentiality and disclosure should be a judicially-managed process; (2) the
scope of the OTP’s disclosure obligations and the deference due to its
interpretation of those obligations, particularly concerning evidence gathered
through informants and intermediaries; and (3) what sort of cooperative regime
should govern the OTP’s relationship with its locally-based interlocutors.

A Towards a Judicially-Managed Process

The Chambers’ decisions of 2008 and 2010 are noteworthy in their
affirmation of the principle that it is for the judiciary, not the OTP, to determine
the extent of the Prosecution’s disclosure obligations. Trial Chamber I, in
particular, made clear that disclosure is to be, above all, a judicially-managed
process. In its words, ‘no criminal court can operate on the basis that whenever it
makes an order in a particular area, it is for the Prosecutor to elect whether or not
to implement it, depending on his interpretation of his obligations’.80 The
Chamber was particularly emphatic on this point, given that it later declined to
lift its second stay even after the OTP had indicated that the identity of
intermediary 143 could be disclosed.81 Strictly speaking, this should have been
sufficient to permit a resumption of Lubanga’s proceedings; however, as the
Chamber noted, the issue was no longer about disclosure alone, but about who
has the authority to interpret disclosure obligations. As the Chamber noted:
It is necessary to repeat and emphasise that justice can no longer be done in this
case whilst the Prosecutor continues to reserve to himself the right not to
implement the Chamber’s orders if he is of the view that they conflict with his
interpretation of his other obligations.82
While the Appeals Chamber affirmed the Trial Chamber’s 2008 holding that
it was the ultimate arbiter of disclosure-related conflicts, it focused less
on whether or not the OTP had, in fact, abused its authority under art 54(3)(e).
For instance, whereas the Trial Chamber’s decision referred repeatedly to the
OTP’s ‘incorrect’ interpretation of the Statute, as well as its ‘wholesale and
serious abuse’ of the provision,83 the Appeals Chamber saw ‘no reason to doubt
the good faith of the Prosecutor’.84 Instead, it confined itself to the conclusion
that the ‘final assessment as to whether material in the possession or control of
the Prosecutor has to be disclosed under [art 67(2)] will have to be carried
out by the Trial Chamber’.85 The Appeals Chamber indicated that certain

80 Decision to Disclose the Identity of Intermediary 143 (International Criminal Court, Trial
Chamber I, Case No ICC-01/04-01/06-2517-Red, 8 July 2010) [27].
81 Decision on the Prosecution’s Application to Take Testimony (International Criminal Court,
Trial Chamber I, Case No ICC-01/04-01/06, 24 September 2010) [5]–[6].
82 Ibid [22].
83 Decision on the Consequences of Non-Disclosure of Exculpatory Materials covered by
Article 54(3)(e) Agreements (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01/06-1401, 13 June 2008) [20], [72]–[73].
84 Lubanga 2008 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 13, 21 October 2008) [96].
85 Ibid.
14 Melbourne Journal of International Law [Vol 12

‘counter-balancing measures’ may appropriately remedy the non-disclosure of

evidence, such as the identification of similar exculpatory material, the
stipulation of certain relevant facts, or the provision of materials in summarised
form.86 Again, however, this was for the Court to decide, not the Prosecutor.
The Appeals Chamber’s 2010 decision further underscores the fact that
disclosure is to be a judicially-managed process. Despite reversing the Trial
Chamber’s stay, the Appeals Chamber made this clear when it endorsed the
imposition of sanctions under art 71 where the Court is ‘faced with a deliberate
refusal of a party to comply with its orders which threatens the fairness of the
trial’.87 Moreover, the language of the Appeals Chamber’s second decision is in
striking contrast to its 2008 opinion, insofar as it, like the Trial Chamber’s earlier
opinions, repeatedly characterises the Prosecutor’s non-compliance as
‘deliberate’,88 ‘wilful’,89 and his representations as ‘at best, disingenuous’.90
Such language not only points to the larger issue of the deteriorated
relationship between the Prosecutor and the Chambers but, in part, it also serves
to explain why one sees, in these decisions, a gradual shift away from an
adversarial process — where disclosure may be said to rely on trust in the parties
themselves — to a model more common in civil law jurisdictions, where the
court is the ultimate arbiter in resolving disclosure conflicts. Indeed, if the
Prosecution is to be entrusted with resolving conflicts between confidential lead
evidence and disclosure, then that requires a level of trust in the parties and a
presumption of good faith. Three years on, it would appear that this presumption
has been sorely tested. As one commentator, writing in the context of the Court’s
2008 decisions, noted, ‘[t]here are indications that during the course of the
Lubanga case the court simply lost confidence in the Prosecution, and at the end
of the day this may have been one of the biggest factors that pushed the court
towards its decision’.91
Recent decisions by the Trial Chamber in Lubanga have, in fact, taken a more
judicially-directed approach to disclosure. In November 2010, for instance, the
Trial Chamber questioned the Prosecution’s late disclosure to the defence of part
of an investigator’s internal memorandum relating to the negative assessment of
the credibility of a prospective witness, who had been introduced to the OTP by

86 Ibid [48].
87 Lubanga 2010 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 18, 8 October 2010) [60]. Notably, it is unclear
why the Chamber invoked art 71 in this regard rather than arts 46 and 47 of the Rome
Statute, as the latter specifically address sanctions for prosecutorial malfeasance. Otto
Triffterer has likewise noted that:
Persons present before the Court in the sense of article 71 are all those not belonging
to one of the organs of the Court … This narrow interpretation is confirmed by the
fact that articles 46 and 47 provide specific sanctions for misconduct of Judges,
Prosecutors and members of the Registry …
Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court:
Observers’ Notes, Article by Article (Hart Publishing, 2nd ed, 2008) 1351 (emphasis in
original).
88 Lubanga 2010 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 18, 8 October 2010) [3], [38], [46], [59], [60].
89 Ibid [46].
90 Ibid.
91 Alex Whiting, ‘Lead Evidence and Discovery Before the International Criminal Court: The
Lubanga Case’ (2009) 14 UCLA Journal of International Law and Foreign Affairs 207, 224.
2011] Case Note: Prosecutor v Lubanga 15

intermediary 143. The Trial Chamber ordered the Prosecution to explain its
‘principles and approach to disclosure’, so that the Chamber could ‘make up [its]
mind’ as to whether or not the OTP has been acting appropriately with regard to
disclosure.92 The Chamber has also taken an increasingly expansive approach to
the Prosecution’s disclosure obligations, ruling, over the OTP’s objections, that it
has a duty to disclose everything relevant in its possession except materials
related to its theories or tactics.93 In an opinion that might well be read as a
referendum on these earlier disclosure controversies, the Trial Chamber wrote:
the prosecution’s disclosure obligations … are wide, and they encompass, inter
alia, any item that is relevant to the preparation of the defence, and including not
only materials that may undermine the prosecution’s case or support a line of
argument of the defence but also anything substantive that is relevant, in a more
general sense, to defence preparation.94
That this loss of trust between the Chambers and the OTP appears to have grown
over time is cause for concern, but if the Lubanga decisions have served to push
the Court towards a more judge-dominated approach, this might augur well for
more expeditious proceedings in the future. Indeed, the Trial Chamber cited
efficiency, in part, as a basis for its expansive approach to disclosure, reasoning
that a broad duty to disclose will ‘increase the likelihood that only those
witnesses are called, who are, on an examination of all the relevant material,
credible and reliable’.95

B Disclosure Obligations for the Office of the Prosecutor

How should the ICC — and more specifically the OTP — partner with local
actors in a way that neither compromises the legitimacy of the Court’s trials nor
the due process rights of its defendants? Here, the Rome Statute is, to some
degree, on a collision course with itself: on the one hand, it permits
confidentiality agreements in order to obtain potentially incriminating evidence
but, on the other, it also mandates that all potentially exculpatory evidence be
disclosed to the defence. Added to this challenge is the OTP’s duty not only to
disclose potentially exculpatory material, but to actively investigate
incriminating and exonerating evidence alike.96 This provision is unique to the
Rome Statute and reflects the view, informed in part by concerns of the Court’s
drafters over ‘equality of arms’, that the Prosecutor’s role should not only be to
seek a conviction, but ‘the truth’ itself.97 Yet, as commentators have noted, the
OTP’s duty to disclose ‘could inhibit investigation efforts by the Prosecution in

92 See Prosecutor v Lubanga (Prosecution Submissions on Disclosure Pursuant to Trial

Chamber’s I Order of 5 November 2010) (International Criminal Court, Case No
ICC-01/04-01-06, 17 November 2010) [3].
93 See Prosecutor v Lubanga (Decision on the Scope of the Prosecution’s Disclosure
Obligations as regards Defence Witnesses) (International Criminal Court, Trial Chamber I,
Case No ICC-01/04-01-06, 12 November 2010) [16]–[18].
94 Ibid [16].
95 Ibid [18].
96 Rome Statute art 54(1)(a).
97 See, eg, War Crimes Research Office, ‘The Relationship between the International Criminal
Court and the United Nations’ (Legal Analysis and Education Project Report 8, Washington
College of Law, August 2009) 50–4.
16 Melbourne Journal of International Law [Vol 12

the future as well as the willingness of the parties to cooperate with the [OTP]’.98
Thus, while it might be ‘tempting to view the disclosure debacle in the Lubanga
case as reflective of failed Prosecution investigative and disclosure practices in a
particular case, it is in fact emblematic of a much larger challenge that the
Prosecution faces at the ICC in proving its cases’.99
Here, arguably, the OTP was dealt an unfair hand when the Court held that art
54(3)(e) should only be used for what it called ‘springboard evidence’.100 There
is nothing in the text of art 54(3)(e) itself to suggest that such evidence might not
later be used as lead evidence, so long as the provider consents to its use.
Likewise, r 82 of the Rules of Procedure and Evidence addresses situations
where evidence originally obtained under art 54(3) later becomes evidence to be
presented at trial.101 Finally, the ability to distinguish between what is
‘springboard evidence’ and what might later become lead evidence is likely an
unworkable distinction, as it is difficult to predict if or how material obtained at
an investigation stage might later be used at trial. The Appeals Chamber itself
noted that the Prosecutor, ‘when receiving material on the condition of
confidentiality, may not be able to predict with certainty how this material can be
used’.102 Questions of expediency and efficiency undoubtedly inform this
calculus as well, as when the Deputy Prosecutor stated in a 2008 status
conference meeting that, although there was ‘never any intention on the side of
the Prosecutor’ to use art 54(3)(e) materials for lead purposes, they were
obtained with a view to gathering materials ‘as quickly as possible for the sake of
the ongoing investigation and then allow[ing] the Office of the Prosecutor to
identify the materials it [wished] to use as evidence and then seek permission’.103
Nevertheless, both of the Appeals Chambers’ decisions reinforce the
importance of the Prosecution doing its utmost to pre-emptively avoid tensions
between the requirements of confidentiality and those of a fair trial. This is
crucial since, in the end, the OTP’s cases against Lubanga were only saved after
the information providers who had initially refused to concede their identities
relented (with some redactions), thus allowing the trial to proceed. To this end,
art 54(3)(e) should be applied, as one OTP advisor has noted, in ‘strict adherence
to the conditions stipulated in the provisions so as to avoid routine resort to its
application’.104 Similarly, confidentiality agreements with intermediaries should
be arrived at in a way that would allow the Court to resolve potential conflicts

98 Whiting, above n 92, 210.

99 Ibid.
100 Lubanga 2008 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 13, 21 October 2008) [54].
101 ICC Rules of Procedure r 82.
102 Lubanga 2008 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 13, 21 October 2008) [42].
103 Prosecutor v Lubanga (Transcript of Status Conference) (International Criminal Court,
Trial Chamber I, Case No ICC-01/04-01/06-T-86, 6 May 2008) 23. See also Decision on
the Consequences of Non-Disclosure of Exculpatory Materials covered by Article
54(3)(e) Agreements (International Criminal Court, Trial Chamber I, Case No
ICC-01/04-01-06/1401, 13 June 2008) [72].
104 Rod Rastan, ‘Review of ICC Jurisprudence 2008’ (2009) 7 Northwestern Journal of
International Human Rights 261, 274.
2011] Case Note: Prosecutor v Lubanga 17

before a stay of proceedings — an ‘exceptional remedy’, as the Appeals

Chamber noted105 — is necessary.
This is not an easy task but it seems clear that the OTP, because it has the sole
power to raise them, should bring preliminary evidentiary issues to the Court’s
attention sooner, in order to avoid the threat that last minute disclosures pose to
fair and expeditious proceedings. In Lubanga, the Prosecution only disclosed the
fact that it was in possession of a large number of potentially exculpatory
documents well after the charges had already been confirmed, thereby depriving
the defence of time it needed to prepare its strategy and adding greatly to
the length of proceedings. One commentator has recommended, in line with
the shift towards a more judge-dominated approach, the introduction of ‘some
inquisitorial elements into the disclosure phase’, such as compelling the
Prosecutor to ‘keep an official file of the investigations that should be disclosed
to the defendant in its entirety, without exceptions: initially, before the
confirmation hearing and, subsequently, before the trial’.106 While the disclosure
of exculpatory evidence would remain at the Prosecutor’s discretion, the
application of more severe sanctions would be appropriate where it was revealed
that evidence had been improperly withheld.107

C Informants, Intermediaries and the Court: Which Way Forward?

Clearly, local informants and intermediaries in particular perform essential
tasks that assist the various organs of the Court in carrying out their duties. As
the situation in the DRC attests, it makes great sense for the OTP to develop
contacts with actors on the ground, given constraints on its time and resources.
Professor Elena Baylis has noted in the context of the DRC investigations
that the scale of inquiries that UN actors like the United Nations Organisation
Mission in the DRC (‘MONUC’) (now United Nations Organisation
Stabilisation Mission in the DRC) have been able to conduct dwarfs the
ICC’s.108 For instance, prior to filing its charges against Lubanga, Baylis notes
that the ICC Prosecutor reported that it had conducted a one-and-a-half year
inquiry, in which it conducted over 70 missions and interviewed 200 people; yet,
in one 10-day probe of a single incident in DRC, MONUC interviewed 150
people and travelled to 30 towns.109
At the same time, cooperation between the OTP and country-based informants
raises concerns as to the perceived impartiality (or lack thereof) of the OTP and,
by extension, the rights of the accused to a fair trial. For instance, adding to the
fact that accused persons already suffer a material disadvantage in conducting
investigations and gathering evidence vis-à-vis the Prosecution, informants and
intermediaries in the ICC’s situation-countries are far more likely to be gathering
incriminatory than exculpatory evidence. As Baylis notes, ‘NGOs and other third

105 Lubanga 2010 Appeals Chamber Judgment (International Criminal Court, Appeals
Chamber, Case No ICC-01/04-01/06 OA 18, 8 October 2010) [55].
106 Michele Caianiello, ‘Disclosure before the ICC: The Emergence of a New Form of Policies
Implementation System in International Criminal Justice?’ (2010) 10 International Criminal
Law Review 23, 40.
107 Ibid.
108 Elena Baylis, ‘Outsourcing Investigations’ (2009) 14 UCLA Journal of International Law
and Foreign Affairs 121, 142.
109 Ibid.
18 Melbourne Journal of International Law [Vol 12

parties are rarely directing their efforts at producing compelling exculpatory

evidence for international criminal defendants’.110 Nor is there any duty upon
these actors, as there is on the Prosecutor, to actively investigate exonerating
evidence.
This is a criticism that the OTP is unlikely to ever fully overcome; however,
as Baylis argues, there are ways in which the OTP could more effectively draw
experts into its investigations from those UN missions and NGOs that are
already operating in situation-countries. By doing so, the Prosecution ‘would
maintain control over the process of investigation and would thereby maximize
the reliability of the evidence produced and the transparency of its
provenance’.111 Furthermore, a set of guidelines that not only sets out with
greater clarity intermediaries’ relationship with the OTP, but also provides more
detailed guidance to follow in conducting investigations, could go far in creating
a set of standards to govern the Prosecution’s relationship with third parties. It
would also help to provide greater clarity and oversight at the outset as to the
relationship between intermediaries and the Court. Better understanding of who
is providing information, why they are providing it, and how they came to
possess it could do much to avoid the sort of issues Lubanga has raised, as when
the veracity and motives of witness intermediaries were called into question.
Such an approach, as Baylis notes, might also set forth a standard for evidence
reporting that would minimise the need for the large number of confidentiality
agreements that nearly derailed the Lubanga proceedings.
Finally, beyond these instrumental reasons, there is a normative stake for the
Court in developing sustainable working relationships with its local
interlocutors. As one victims’ rights group has noted, a ‘partnership should be
strived for whereby both parties work together within their separate
competencies to implement the Court’s mandate’.112 In line with this idea, Draft
Guidelines were, in fact, circulated in October 2010, in an attempt to ‘provide a
framework with common standards and procedures in areas where it is possible
to standardize the Court’s relationship with intermediaries’.113 Yet a review of
this document reveals considerable uncertainty as to what sort of relationship this
should be. For instance, the Draft Guidelines state that ‘intermediaries at risk on
account of the activities of the Court have a right to protection’;114 however,
later, they also indicate that ‘the issue of whether the Court has a duty, if any, to
protect [intermediaries] and adapt (some) protective measures should be
determined on a case by case basis’.115 These seemingly contradictory
conceptions of intermediaries — as rights-bearers on the one hand, and
‘volunteers’ on the other — further reflect the indeterminacy of their position
within the ICC’s structure, as the ‘selection criteria, nature of the relationship,

110 Ibid 145.

111 Ibid 146.
112 REDRESS, ‘Comments on the Draft Guidelines Governing Relations between the Court and
Intermediaries’ (Report, REDRESS, 15 October 2010) 1.
113 Draft Guidelines, above n 1, 2.
114 Ibid 3.
115 Ibid 4.
2011] Case Note: Prosecutor v Lubanga 19

and level of support [they provide] vary between different organs and units of the
Court and Counsel’.116
At the level of the OTP, then, it might well prove preferable to establish a
more particularised set of guidelines of the sort that Baylis has proposed. This
would not only better ensure that the evidence produced by intermediaries is
useful to the OTP, but clarify at the outset the rights and duties owed to those
third-parties with whom the Court engages. Otherwise, intermediaries and other
local partners risk remaining in an ill-defined and often dangerous role. Carine
Bapita, a lawyer from Kinshasa who represents victims in the Lubanga case,
illustrated this very point after the Trial Chamber imposed its 2008 stay and
ordered Lubanga’s release. She called on the OTP to do more to explain to local
Congolese what was happening, rather than have that responsibility foisted on
intermediaries. In her words, ‘[t]hey are risking their lives and as if that is not
enough, now they are supposed to go to the victims and explain what is
happening’.117

V CONCLUSION
Although much commentary has been lavished on the question of the need for
state cooperation with respect to the arrest and surrendering of suspects to the
Court, it is clear that, just as the ICC needs a network of state actors willing to
execute its warrants, it also needs a network of local actors — NGOs, UN
missions, and committed individuals — who are willing and able to share the
information they have gathered, and to engage with affected communities on the
ground. While the decisions highlighted herein underscore the delicate nature
and emerging contours of the ICC’s disclosure regime, informants and
intermediaries are the critical figures that underwrite this narrative, but their
relationship with the Court and its organs is in need of further reflection.
Addressing this lack of clarity between the ICC, particularly the OTP, and its
local interlocutors must be a priority going forward. Indeed, as subsequent
proceedings have demonstrated, the deficiencies laid bare by Lubanga extend to
other cases in the DRC as well. For instance, in the ongoing case against
Germain Katanga and Mathieu Chui, the Prosecution has also drawn heavily on
evidence gathered from confidential agreements with intermediaries,118 leading
to the Single Judge expressing her concern about ‘the reckless investigative
techniques during the first two years of the investigation into DRC’.119 Though a
stay of proceedings was avoided in that matter, the Judge, like Trial Chamber I,
expressed frustration with the Prosecutor’s late disclosure of documents, which
had been ‘within the [OTP] for years — and which have not been disclosed to

116 Ibid 2.
117 Quoted in Katy Glassborow, ‘Intermediaries in Peril’, Institute for War and Peace
Reporting (online), 28 July 2008 <http://iwpr.net/report-news/intermediaries-peril>.
118 See, eg, Prosecutor v Katanga (Decision on Article 54(3)(e) Documents Identified as
Potentially Exculpatory or Otherwise Material to the Defence’s Preparation for the
Confirmation Hearing) (International Criminal Court, Pre-Trial Chamber I, Case No
ICC-01/04-01/07, 20 June 2008) [52]–[64] (Single Judge Sylvia Steiner).
119 Ibid [123].
20 Melbourne Journal of International Law [Vol 12

the Defence due to confidentiality restrictions’.120 Unsurprisingly, Katanga and

Chui’s defence counsel have also raised abuse of process concerns with respect
to the OTP’s use of intermediaries.
Ultimately, some of the challenges that the Lubanga trial has laid
bare — between the OTP’s imperative to balance its fair trial obligations with its
need to build partnerships with local actors — were inevitable. Implicit in the
constitutional foundation of the ICC is the fact that it is a consent-based
institution; its ability to conduct investigations effectively depends on the
cooperation of states and state-based actors alike. In order to facilitate this
cooperation, compromises with respect to confidentiality of sources and
restrictions on disclosure were made, but the perimeters of those compromises
must be tested, as they currently are, against the standards of due process to
which the Court’s defendants are entitled. This is as should it be. As Judge
Fulford himself recently remarked, ‘[e]ven following the best part of a decade
since [the Court’s] establishment, the strong feeling remains that so much is still
in the process of being established’.121 More courtroom battles lie ahead but,
nevertheless, one lesson from Lubanga must be the need to think more
proactively not only about the OTP’s investigative practices, but also about the
sort of partnerships the ICC as a whole must build — principled as well as
pragmatic — with local actors, on whom the success of the Court most depends.

CHRISTIAN M DE VOS*

120 See Prosecutor v Katanga (Decision on the 19 June 2008 Prosecution Information and
Other Matters concerning Articles 54(3)(e) and 67(2) of the Statute and Rule 77 of the
Rules) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07, 25
June 2008) [7] (Single Judge Sylvia Steiner).
121 Judge Sir Adrian Fulford, ‘The Reflections of a Trial Judge’ (Speech delivered at the
9th Assembly of States Parties to the International Criminal Court, New York, 6
December 2010).
* PhD Researcher, Post-Conflict Justice and ‘Local Ownership’, Grotius Centre for
International Legal Studies, University of Leiden — Campus The Hague. The author may be
contacted at [email protected].