Another "Get Out of Jail Free Card" for Lubanga

The first man to be tried by the International Criminal Court has been handed a "get out of jail free" card again. Following repeated clashes with prosecutors over security measures for an anonymous source, judges halted the trial and decided to release Thomas Lubanga Dyilo, a Congolese politician charged with recruiting child soldiers.

Both ICC prosecutors and victims of the brutal conflict in the Democratic Republic of Congo hope this is simply another legal glitch which will soon be fixed. But judges have warned that it may signal an abrupt end to the ICC's first trial—not something most international justice advocates would have hoped for this beleaguered and controversial institution.

Indeed, the potential collapse of the case will no doubt be viewed as deeply disappointing by many Congolese victims who have waited years to see individuals held accountable for their alleged role in brutal crimes unleashed in eastern DRC.  The order that Lubanga be set free with no strings attached may also terrify some in the DRC's remote Ituri region, as Lubanga's supporters celebrate (Lubanga has denied all charges against him). The Congolese government, the ICC, and others in a position to help must be on red alert to make sure people on the ground stay safe if there is any trouble.

But the Trial Chamber's decision does send a deeply important message about the ICC: this is no kangaroo court. If the process is not fundamentally fair, then the accused must be released.

Skeptics have portrayed the ICC as a tool used by politicians in power to eliminate rival leaders and have noted that any ICC prosecutor could be riskily unpredictable if not kept in check.

Instead, this episode demonstrates that the ICC is serious about its mission to provide a fair hearing to those who come before it. It is genuinely struggling as an institution to find the right balance of responsibilities between the judges and prosecutors while also taking on board concerns about the safety of victims, witnesses, and others who could be harmed on account of the court's work.

The ICC has previously sent a strong message about the importance of fair trials, deciding in 2008 to release Lubanga before his trial had even begun. In 2008, prosecutors refused to share information obtained under confidentiality agreements with the United Nations and other organizations, which could have bolstered the case for Lubanga's innocence. According to the judges, this denied Lubanga's right to a fair trial and so he should be set free. Prosecutors appealed, the dispute was resolved and the trial finally started in January 2009.

This time around, the judges decided to release Lubanga, citing the prosecutors‚ repeated refusal to comply with an order to tell Lubanga and his defense team the identity of a person who had helped prosecutors find potential witnesses. In response, the prosecutors cited dual obligations: one to comply with the decision of the judges, and a separate responsibility to protect individuals who may be harmed on account of the prosecutors' work. Though the judges were told by protection specialists at the court that the person would be at no greater risk by their disclosure order, prosecutors disagreed—a move which drove the judges to issue a warning for misconduct to the chief prosecutor and his deputy.

"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," the judges stated last week, calling the prosecutor's actions "a profound, unacceptable, and unjustified intrusion into the role of the judiciary." To make sure Lubanga gets a fair trial, the court said "it is necessary that its orders, decisions, and rulings are respected."

The judges then said that continuing to hold Lubanga would be "unfair," given the "wholesale uncertainty" of whether the trial would restart, along with the length of jail time (five years) Lubanga has already served. Prosecutors have appealed, arguing that Lubanga may flee if set free.  Prosecutors also said they did not disrespect the Trial Chamber's orders, but instead the clash amounted to a different perception of judicial and prosecutorial roles under the court's guiding documents, and now want the roles clarified by the appeals chamber.  Lubanga will be kept in jail until the appeals chamber decides whether the case can go forward.

But whatever the outcome of the appeal, the ICC has demonstrated that the court is serious. Both the prosecutors and judges have shown that at least in this instance they care deeply about security of the people who may be put at risk on account of their work, with an outcome highlighting that the judges are the ultimate decision-makers and will not brook disobedience by parties. Meanwhile, for the judges‚ determination to ensure fair trials means that anyone indicted should not be afraid of coming before the court to put forward their case.

Slowly, painfully, and with disappointments along the way, the ICC is showing that even if we are disenchanted with the outcomes it is a place which operates exactly as a court should: according to the law, and with checks and balances in place to keep the trials fair.