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Judges Stay Proceedings In Lubanga’s ICC Trial

Judges at the International Criminal Court (ICC) today halted proceedings in the war crimes trial of former Congolese rebel leader Thomas Lubanga, citing abuse of the court’s process.

They said the immediate cause of the stay of proceedings was the prosecution’s “unequivocal refusal to implement the repeated orders” made by judges for the disclosure of the identity of ‘intermediary 143’ to the defense.

The individual referred to as ‘intermediary 143’ worked as an agent of prosecution investigators in the Democratic Republic of Congo (DRC) in identifying individuals who testified against Mr Lubanga. In hesitating to comply with the judges’ orders, prosecution staff yesterday submitted that revealing the identity of ‘intermediary 143’ before protective measures were put in place for him would have put his life at risk.

Presiding judge Adrian Fulford today said that the court would on July 15, 2010 hear submissions regarding the continued detention of Mr. Lubanga, who has been held in The Hague by the ICC since March 2006. He added that the judges were ready to receive an application from prosecutors for appeal of the stay of proceedings decision.

Otherwise, Judge Fulford stated, proceedings against Mr. Lubanga were being halted in their entirety. “There are to be no filings, no submissions, no applications on any issues other than those which I have just indicated,” judge Fulford said, referring to the readiness of judges to receive application for leave of appeal and regarding Mr. Lubanga’s continued detention.

“That means that the court officer currently in the DRC should return. We do not propose to hear any further evidence. Witness 38 should receive our apologies if he has been inconvenienced as should the other witnesses whose evidence we had intended to hear by way of a video link,” Judge Fulford stated.

Mr. Lubanga, whom prosecutors allege was the founder of the Union of Congolese Patriots (UPC), is accused of enlisting, conscripting and using child soldiers in armed conflict during 2002 and 2003. The ICC’s prosecutors also charge that Mr. Lubanga was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), an armed group allied to the UPC which used child soldiers in inter-ethnic fighting in Congo.

Mr. Lubanga’s trial started on January 26, 2009, with the prosecution resting its case on July 14, 2009. The defense case started on January 29 this year, its opening having been delayed as judges considered an application from representatives of victims taking part in the trial for inhumane treatment and sexual crimes to be added to Mr. Lubanga’s charge sheet.

Mr. Lubanga’s defense has claimed that prosecution intermediaries bribed and coached witnesses to provide false testimony to court. This has prompted judges to order prosecutors to produce two intermediaries to testify, and to disclose the identity of ‘intermediary 143’. Three prosecution investigators have also been ordered to take the witness stand although none has appeared yet.

Mr. Lubanga’s defense has indicated in recent days that it was on the verge of filing an application for judges to consider throwing out the case against Mr. Lubanga, on the grounds of the abuse of process perpetuated by the intermediaries.

In their written decision, judges stated that they were at the time hearing evidence on the allegation that the prosecution knowingly employed, or made use of, intermediaries who influenced individuals to give false testimony, thereby abusing its powers. “Failure to disclose information which is relevant for the examination of witnesses testifying in this context is likely to be relevant to [the] defense abuse [of process] application,” stated judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann.

The judges stated that the prosecution had declined to be checked by judges. In these circumstances, it was necessary to stay the proceedings as an abuse of the process of the court because of the material non-compliance with the judge’s orders of July 7, 2010 related to disclosure of the identity of ‘intermediary 143’.

“Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework,” the judges stated.

Next week, on July 15, the judges will hear submissions about whether Mr. Lubanga’s should be released.