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It is looking more and more likely that the first case before the International Criminal Court may never come to trial. What happened is this: when building the case against Congolese rebel leader Thomas Lubanga Dyilo (who is accused of some truly heinous acts) the court’s prosecutor used classified information provided to him by the United Nations. Nothing wrong with that. But it is a tenet of international and customary law that the accused has the right to review the evidence used against him. This means that the prosecutor is obliged to turn over evidence that may be exculpatory.

The problem here is that the evidence the United Nations provided to the prosecutor was classified, so the defendant has not been able to review potentially exculpatory evidence. In response to all this, Lubanga asked that his case be thrown out. The court initially ruled in his favor, but the prosecutor appealed that decision. Yesterday, the appellate court of the ICC ruled in favor of Lubanga, but ordered a new hearing as to whether or not Lubanga should be unconditionally released from custody. International law scholar Kevin Jon Heller of the excellent Opinio Juris has more on the significance of this decision.

Clearly, the court is young, so there was bound to be rough patches early on. To its credit, this turn of events does show that the various organs of the court (i.e. the Office of the Prosecutor and the judges chambers) operate distinctly from each other, with the judges offering a check on the prosecutor’s power. Contra many critics of the court, the prosecutor is accountable. Still, this is pretty disappointing turn of events for those of us who were eager to see the prosecutor prove himself during this first trial.

UPDATE: Wasil Ali of the Sudan Tribune writes in “I don’t see any reason for disappointment. The appeal chamber decision is really outdated since it did not consider the events that happened after July. The prosecutor submitted all evidence to trial chamber last week in unredacted format and some of that (93 135 documents) directly to defense. This will comply with what the judges have asked since they wanted unfettered access to it and the ability to review and determine what needs to be shared with defense. My guess that the trial will commence soon. Even the judges last week said that it was submitted “under potentially satisfactory circumstances.”

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