One of the appeals chamber judges has excused herself from the panel of judges that will hear a prosecution appeal for the lifting of the stay of proceedings in the war crimes case against former Congolese leader Thomas Lubanga.
On July 15, 2010, Judge Akua Kuenyehia filed the request to be excused from sitting in this appeal and in all future appeals in Mr. Lubanga’s case, according to a statement from the presidency of the Court. This was due to her previous involvement in the pre-trial phase of the case, in the course of which she issued a warrant of arrest for Mr. Lubanga and confirmed the charges against him.
The presidency of the Court granted her request on July 16. However, because the appeals chamber is supposed to be composed of all judges of the appeals division – that is, the president and four other judges – Judge Sanji Mmasenono Monageng, who is currently assigned to the Pre-Trial Division has been temporarily attached to the Appeals Division.
Accordingly, the judges who will hear the two appeals filed by the prosecution are Sang-Hyun Song, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng. The presiding judge shall be Judge Sang-Hyun Song.
Prosecutors have appealed orders by trial judges for a stay of proceedings and the release of Mr. Lubanga, who is charged with conscripting, recruiting, and using child soldiers during 2002 and 2003. Judges made the two orders after prosecutors failed to implement an order by judges to disclose the identity of a person who helped identify some of the witnesses who testified against Mr. Lubanga.
According to the judges, the failure by prosecutors to disclose the identity of this individual (known as ‘intermediary 143’) constituted an abuse of court process and rendered it impossible to assure a fair trial for the accused.
The defense had stated that it needed to know the identity of ‘intermediary 143’ for its questioning of another prosecution intermediary who has been implicated in bribing and coaching witnesses.
Mr. Lubanga – the alleged former head of the Union of Congolese Patriots (UPC) whose armed wing used child soldiers – has been in detention in The Hague since March 2006. It is not clear when the appeals chamber will start handling the two appeals. Until its ruling is handed down, Mr. Lubanga can not be released from ICC detention.