A lawyer who represents a group of victims participating in the Thomas Lubanga trial has said victims are concerned about the adverse consequences that could arise from the order for the release of the former Congolese rebel leader.
In submissions to appeals judges, Luc Walleyn stated that if the stay of proceedings in the trial was confirmed, the war crimes committed in Congo’s Ituri province would not only remain unpunished, but there would also be no judgment on the crimes.
“After four years of participation in the proceedings, the victims would never have the opportunity to expose the harm they suffered, and their requests for compensation would fail,” stated the attorney.
Moreover, he added, Mr. Lubanga would lose the opportunity to convince the court, public opinion and victims, of his innocence since a substantive debate on the charges would never occur. “In the eyes of victims, all seems at odds with the objectives of the creation of the ICC,” submitted Mr. Walleyn in the filing of August 23, 2010.
Paolina Massidda, the Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC), has argued in a separate filing to the appeals chamber that releasing Mr. Lubanga could “now more than before seriously endanger the safety of victims and witnesses involved in the case.” Some 103 victims are participating in the trial.
Trial judges at the ICCon July 14, 2010 ordered the release of Mr. Lubanga – the first person to be tried by the world court since its formation in 2002 – following a halting of proceedings a week earlier. The judges said the release was inevitable because it was uncertain whether the trial would resume in the near future.
However, ICC prosecutor Luis Moreno-Ocampo has appealed both the stay of proceedings and the release order for Mr. Lubanga, who is accused of conscripting, enlisting, and using child soldiers in armed conflict. Prosecutors claim that the crimes were committed during 2002 and 2003 while he purportedly led the Union of Congolese Patriots (UPC) and its armed militia.
In his filing in support of the prosecution’s appeals, Mr. Walleyn pointed out that the Rome Statute, which founded the ICC, has fundamentally changed international justice by providing not only for the participation of victims in proceedings, but also the possibility for them to obtain redress. Victims had thus relied on the ICC, seeking to participate in the proceedings and in some instances “taking significant risks by giving evidence.” Three victims have testified at the trial that started on January 26, 2009.
“For over four years, these victims have lived in a situation of uncertainty and insecurity. Some have been threatened and physically assaulted because of their participation in the proceedings,” Mr. Walleyn argued. He added that some of the victims have not been incorporated into the court’s protection program; and that the prospect of Mr. Lubanga’s release had raised concerns about revenge actions since he knows their identities and addresses.
Prosecutors and Mr. Lubanga’s defense were supposed to have responded to the victims’ submissions at the end of last week. This would then have paved the way for appeals judges to determine the next steps in the appeal. Prosecutors have proposed oral hearings, but the judges are yet to pronounce themselves on the request.
According to Mr. Walleyn, Mr. Lubanga’s release was ordered not because he had spent a long time in detention – he has been in ICC custody since March 2006 – but because an indefinite stay on proceedings had been ordered. He argued that it would therefore be improper for the appeals chamber to decide on his release without deciding on the order for a stay of proceedings.
The trial chamber presided over by Judge Adrian Fulford ordered the stay of proceedings following the failure by prosecutors to disclose to the defense the identity of an intermediary, who helped to identify prosecution witnesses. Prosecutors said then that the safety of that individual would be endangered if his identity were immediately disclosed before protective measures were put in place.
Mr. Walleyn said the victims believed that the unconditional stay of proceedings ordered by trial judges was “disproportionate, premature and unjustified.”