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Judges Allow Victims To Participate In Lubanga Release Appeal

Appeals judges at the International Criminal Court have granted victims who are participating in the trial of Thomas Lubanga the right to take part in the prosecution’s appeal against his release.

In an August 17, 2010 ruling, the judges stated that the victims should present their views and concerns with respect to their personal interests in the issues raised in the appeal. The victims’ submissions were to be presented by August 23, 2010.

The appeals chamber found that the victims met all the criteria for participation in the appeals. Furthermore, the appeals chamber considered the participation of victims to be appropriate, noting that it was consistent with Mr. Lubanga rights, especially because he would have the right to respond to the submissions of the victims.

Prosecutors at the ICC are appealing an order for Mr. Lubanga’s release, which trial judges issued on July 15, 2010 following a stay of proceedings. Accused of enlisting, conscripting, and using children under the age of 15 years in armed conflict in the Democratic Republic of Congo during 2002 and 2003, Mr. Lubanga has been in ICC custody since March 2006.

The prosecution has supported the participation of victims in the appeal against the stay of proceedings and the release order. For its part, the defense chose not to respond to the victims’ application to participate in the appeal, but said it reserved the right to respond to the victims’ submissions if they were allowed to participate. Mr. Lubanga’s defense has in the past criticized the role victims have played in the trial, charging that they have often attempted to play a prosecutorial role.

Victims participating in Mr. Lubanga’s trial have been allowed to question defense and prosecution witnesses whose testimonies they felt directly affected their interests. Three of the 103 victims taking part in the trial also gave testimony in court.

In this week’s decision, appeals judges pointed out that victims could only participate in an appeal if they are already participating victims in the proceedings, and their personal interests must be affected by the issues on appeal. Besides, their participation must be at an appropriate stage of the proceedings and the manner of participation must neither be prejudicial nor inconsistent with the rights of the accused and a fair and impartial trial.

However, presiding judge Sang-Hyun Song appended a separate opinion to the ruling granting victims the right to take part in the appeal against Mr. Lubanga’s release. He stated that he agreed with the majority of the judges that victims should be allowed to make submissions on the appeal. However, he disagreed with the approach of the majority to participation of victims in appeals.

Judge Song stated, “In my view, victims who have been permitted to participate in proceedings giving rise to an appeal under that provision are participants in terms of regulation 64 (4) and (5) of the Regulations of the Court. They therefore have the right to file a response to the document in support of the appeal. There is neither a need for them to apply for participation, nor for the Appeals Chamber to rule on such applications.”

Other judges hearing the appeal are Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.