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Appeals Judges Rule That Lubanga Will Not Be Released; Trial To Resume

International Criminal Court (ICC) appeals judges ruled today that Congolese war crimes accused Thomas Lubanga should not be released and ordered his trial to resume. 

Two months ago, trial judges stayed proceedings in the trial of the former rebel leader and ordered his release from ICC detention. The prosecution appealed both the decision to suspend the trial and the order for Mr. Lubanga’s release. 

Today, the appeals judges ruled that the trial chamber erred when it stayed the proceedings without first imposing sanctions against the prosecutor following his failure to comply with the trial chamber’s orders. They said sanctions were a key tool for chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having recourse to “the drastic remedy of staying proceedings.”

The appeals judges stated that their reversal of the decision to stay proceedings necessitated a reversal of the release order. “The appeals chamber agrees with the prosecutor that the stay of proceedings was the essential element underpinning the decision to release Mr. Lubanga Dyilo. If not for the stay of proceedings, the trial chamber would not have ordered the release of Mr. Lubanga Dyilo,” the judges stated in the written decision. 

The judges also ruled that the prosecutor acted wrongly in refusing to honor an order by trial judges to disclose to the defense the identity of an individual known as ‘intermediary 143’ who had helped prosecution investigators contact witnesses. It was after the prosecution’s failure to implement this disclosure order that trial judges on July 8, 2010 stayed the proceedings. 

“Orders of the chambers are binding and should be treated as such by all parties and participants unless and until they are suspended, reversed or amended by the appeals chamber or their legal effects are otherwise modified by an appropriate decision of a relevant chamber,” the appeals judges stated. They added that even if there was a conflict between the orders of a chamber and the prosecutor’s perception of his duties, the prosecutor was obliged to comply with the orders of the chamber. 

In failing to obey the order last July, prosecutor Luis Moreno-Ocampo stated that if the identity of the intermediary were disclosed before protective measures, such as relocation, were put in place for him, the individual would have been at risk of reprisal attacks from Mr Lubanga’s supporters. The prosecutor felt that disclosure at that stage would have conflicted with his obligation to protect witnesses. Last month, the prosecutor said the identity of ‘intermediary 143’ had since been disclosed to the defense following the institution of protective measures for him.

Mr. Lubanga is the first person to be tried by the ICC, whose prosecutors allege that he was the founder of the Union of Congolese Patriots (UPC) and the Patriotic Forces for the Liberation of Congo (FPLC). Prosecutors also charge that Mr. Lubanga was the commander-in-chief of the FPLC from September 2002 to the end of 2003, and during this time he bore responsibility for the recruitment, conscription, and use of children under 15 years in armed conflict. 

Judge Sang-Hyun Song, who presided over the appeal, said in an oral summary of the ruling that the appeals chamber had noted Mr. Lubanga’s argument that he should not be detained any longer due to the “inexcusable delay of the prosecutor.” However, Judge Song added that the trial chamber did not make any findings that Mr. Lubanga was detained for an unreasonable period due to the inexcusable delay of the prosecutor. Mr. Lubanga has been in ICC detention since March 2006. His trial started in January 2009. 

Others judges who heard the appeal included Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng. 

Following today’s ruling, the trial chamber is expected to call a status conference during which prosecutors and the defense would indicate when they would be ready for the resumption of the trial. At the time the proceedings were stayed, an intermediary was giving evidence. Another intermediary and at least two prosecution investigators were scheduled to testify next.

The prosecution had planned to call some rebuttal witnesses, after which the defense would submit an application for judges to consider dismissing the case on the grounds that the intermediaries forged evidence and coached witnesses.