The Hague, Netherlands -- The chief prosecutor for the International Criminal Court, Luis Moreno-Ocampo, again has been handed a setback in his efforts to bring former eastern Congo militia leader Thomas Lubanga Dyilo to trial.
In the latest move, the ICC's judges last Thursday rejected the prosecutor's request that the Lubanga trial, which they summarily suspended in June, be allowed to continue.
Instead, the judges outlined the conditions under which they would allow the trial proceed.
Their primary requirement is to be allowed full access to documents and evidence that Moreno-Ocampo obtained from United Nations and other sources under the condition that the information be kept confidential.
The court suspended the Lubanga case after the judges concluded that Lubanga could not receive a fair trial because not only the judges, but Lubanga's defense, was prevented from accessing that evidence.
That evidence reportedly could benefit Lubanga.
Moreno-Ocampo has argued that he is allowed to collect confidential information under the Rome Statute which created the court.
The ICC judges agreed, but said that information can only be obtained anonymously if it is used to obtain other information and evidence that can be shared.
The judges, however, said they might lift their suspension of the Lubanga trial if, and only if, they "can adequately review - on a continuing basis for the entirety of the trial– the documents in question...."
In other words, they want full access. Once that happens, then the judges will decide what, if any, evidence can be handed over to the defense in order to insure a fair trial for Lubanga.
The primary charges against Lubanga are for recruiting and using child soldiers for his ethnic Hema militia in eastern DRC.
The judges indicated that discussions are continuing between the court, the prosecutor, and the UN and others who provided the documents, suggesting that a breakthrough in this deadlock may be possible.
The judges decision is far from complete, however, and does little to solve the standoff between themselves and the court's chief prosecutor.
And, it does little to change the condition of Lubanga, who remains in ICC custody.