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Imagine that the Director of Public Prosecutions had been found guilty of contempt of court for deliberately flouting the orders of an Old Bailey judge. Imagine, further, that the prosecutor's disobedience was so fundamental that, in the court's view, it was no longer possible for the defendant to receive a fair trial.

There would be two consequences. First, the defendant would be acquitted. And, second, the prosecutor would resign.

But that's not the way the International Criminal Court has chosen to deal with just such a case. When the prosecutor, Luis Moreno-Ocampo, refused to comply with a court disclosure order, what the judges should have done was order him to pay fines of up to 2,000 euros a day until he changed his mind. The trial chamber should not have thrown out the case until it was clear that mounting fines had not persuaded him to obey the law.

So said a chamber of five appeal judges on October 8. Overturning a decision by the trial chamber to release Thomas Lubanga, the appeal judges allowed his trial to continue.

Lubanga is accused of conscripting children under the age of 15 to his Union of Congolese Patriots in order to kill members of a rival tribe during the five-year civil war in the Democratic Republic of Congo that ended in 2003 and cost millions of lives. He has pleaded not guilty to war crimes and says he was a politician, not a warlord.

More than seven years into his nine-year term at The Hague, Moreno-Ocampo has yet to achieve a single conviction — or even an acquittal. The Lubanga trial, which opened at the beginning of last year, was meant to be a short, simple case.

Moreno-Ocampo's team had obtained some of their evidence through the use of intermediaries. These were people who introduced witnesses to the prosecutor or who contacted witnesses on his behalf.  Intermediaries were granted anonymity for their own protection.

Lubanga's lawyers allege that some of the intermediaries had tried to induce witnesses to give false evidence. So the trial judges, headed by Sir Adrian Fulford, agreed that Lubanga should be told the identity of a particular intermediary, after measures to protect him had been put in place. Moreno-Ocampo refused — deciding, in effect, that his duty to protect the intermediary's identity from even limited disclosure trumped his duty to obey the court's orders. Fulford's court concluded that it had lost control of the case and could no longer do justice.

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