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Defense Lawyers Say Halting Lubanga’s ICC Trial Was Inevitable

War crimes accused Thomas Lubanga’s lawyers have asked the appeals chamber of the International Criminal Court (ICC) to reject an appeal against the stay of proceedings, stating that the prosecutor had refused to obey orders issued by trial judges.

“The suspension of proceedings ordered by the chamber, far from being unjustified or excessive, appears to be the logical and inevitable consequence of the unacceptable behavior of the prosecutor in this case,” lead defense attorney Catherine Mabille said in an August 9 filing.

The prosecution has appealed the stay of proceedings ordered on July 8, 2010 by the trial chamber presided over by Judge Adrian Fulford, arguing that it was excessive and erroneous. Trial judges suspended the trial after the Office of The Prosecutor (OTP) failed to disclose to the defense the identity of an individual known as ‘intermediary 143’, who helped prosecution investigators identify people who could testify against Mr. Lubanga.

Luis Moreno-Ocampo, the ICC prosecutor, said in a July 30, 2010 filing that the trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings. The prosecution has appealed both the stay of proceedings and the order for Mr. Lubanga’s release, which was issued on July 15, 2010.

Ms. Mabille said it was not acceptable that the execution of a court order should be subject to whether the prosecutor considered it consistent with his rights and obligations. She added that the trial chamber was therefore right to stay the proceedings, as the prosecutor had declined to obey the release order and had indicated that he would not implement future orders that he felt conflicted with his interpretation of the prosecution’s obligations.

According to the defense, the only procedural right available to the prosecutor to challenge the disclosure orders was to appeal against the disclosure order “but this appeal [right] has not been used.”

The prosecution has not appealed against the disclosure orders, as it says it is now ready to effect them. At the time the orders were issued, prosecutors pleaded that if the identity of ‘intermediary 143’ were revealed to Mr. Lubanga’s defense before protective measures were instituted for the intermediary, his security would be compromised.

The prosecution requested to be given some time to have these protections instituted, but judges ruled that revealing the intermediary’s identity to Mr. Lubanga defense, including the defense’s agent in the Democratic Republic of Congo (DRC), would not pose a security risk to the individual.

The defense contends that the “delaying tactics” that the prosecutor attempted to use to deal with the disclosure orders amounted to an unequivocal expression of its refusal to comply with the orders. A day before the stay of proceedings, the defense stated that it could not proceed with the cross-examination of ‘intermediary 321’ who was at the time giving evidence if it was unaware of the identity of ‘intermediary 143.’

In the August 9 application, Ms. Mabille argued that the revelation of the identity of ‘intermediary 143’ was essential for a fair trial since this individual, as well as other intermediaries that go by the court-given numbers 321 and 316, and some unnamed employees of the OTP, allegedly participated in fabricating evidence.

The defense said it needed to know the identity of this individual for its questioning of the two other intermediaries and other OTP staff who had been summoned to give evidence, “and to assess his possible relationship with other actors in this fraudulent process.”

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 he was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), an armed group allied to the UPC that used child soldiers in inter-ethnic fighting in Congo.

 The appeals chamber has not yet given an indication of whether it will allow a request by Mr. Moreno-Ocampo for oral hearings of the appeal. Mr. Lubanga’s trial started in January last year although he had been in ICC detention since March 2006.