A former Congolese rebel leader could walk free from his trial before the International Criminal Court in The Hague, because the prosecution is refusing to obey the orders of the presiding judges. Thomas Lubanga Dyilo is accused of recruiting child soldiers and sending them to fight in the bitter regional war in the mineral-rich eastern region of the Democratic Republic of Congo (DRC).
 
The trial at the International Criminal Court (ICC) is now suspended following the refusal by the prosecution. If the dispute is not resolved, the case against Thomas Lubanga seems doomed to collapse. A ruling on the matter is expected this Thursday.
 
International law experts say that if the trial falls apart it will be a 'PR nightmare' and 'disaster' for the International Criminal Court. This would be a major embarrassment for the ICC's Chief Prosecutor Luis Moreno Ocampo, because the high-profile Lubanga trial is the first to be held at the ICC.
 
Almost released
Thomas Lubanga was arrested in 2005, but his trial did not begin until some four years later, following delays due to criticism of evidence gathered by the prosecution. The accused was almost released then, but after various appeals the trial finally got underway in 2009.
 
The current legal wrangle concerns the way evidence has been gathered by prosecutors in the DRC itself. Prosecutors have used middlemen to find witnesses, and the defence has made accusations about payments being made to people to fabricate testimony against Thomas Lubanga.
 
Since the trial began, two prosecution witnesses have ultimately retracted their initial statements once they appeared in court. In light of these problems, the judges ordered Mr Ocampo to reveal the names of one of the intermediaries. This is something he has so far refused to do, arguing it would put the agent's life at risk.
 
Court's authority
Wayne Jordash  - a defence lawyer at the neighbouring international court in The Hague, the International Criminal Tribunal for the former Yugoslavia (ICTY) - thinks the ICC prosecution's stance is wrong:
 
"I don't have any understanding for what the prosecution has done. Firstly it cannot be that a party to a criminal court process can assert a right to ignore judicial orders. It is a basic principle of criminal processes that the court's authority is overriding."
 
Mr Jordash points to the position taken by the Victims and Witness Unit of the court, which says it doesn't have a problem with disclosure of the name in court. He thinks there is something else happening behind the scenes at the trial.
 
"There is no proper basis for the prosecution to take the position they did. What they claim is that, 'well, we are entitled not to disclose certain information until we are satisfied that we have complied with our obligation for protective measures'. The Witness and Victims Unit agreed with the trial chamber that the disclosure could take place, and yet the prosecution insists it's not prepared to make that disclosure."
 
Jean-Pierre Bemba
Many observers believe the Lubanga trial should have been relatively straightforward. For their part, the prosecutors are refusing to comment on the current dispute, which has brought proceedings to a halt, but have formally objected to the suspension. If the case collapses, serious questions will be asked of the prosecution and doubts will no doubt develop as to the prospects for future, more complex trials.
 
The ICC trial of former Congolese vice-president Jean-Pierre Bemba - accused of three charges of war crimes and two of crimes against humanity - is a much more complex case and has already been delayed several times, with Mr Bemba continuing to contest the admissibility of the entire case against him.
 
Fair trial
International law expert Professor William Schabas says if the Lubanga trial does ultimately collapse, however, this will in fact demonstrate that the principle of a fair trial is paramount.
 
"If the court determines that it cannot carry out a fair trial, that should reassure people that the tribunal knows what a fair trial is. And that they only proceed when they are satisfied that the trial can be fair."
 
Whether those outside legal circles will see this as being a particularly positive outcome remains to be seen.