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Lubanga Appeal: Victims Ordered To Make Their Filing Public

Appeals judges have asked victims participating in the prosecution’s appeal against the stay of proceedings in the war crimes trial of Thomas Lubanga to make public their filings in support of the resumption of the trial. 

On September 30, 2010, presiding judge Sang Hyun Song ordered the court’s registry to file a public redacted version of submissions filed on behalf of some victims regarding the prosecution’s appeal against the suspension of the trial. The redactions will mainly relate to the use of pseudonyms to refer to victims or witnesses. 

Following the prosecution’s appeals against the stay of proceedings and the order for Mr. Lubanga’s release, the defense submitted that there was no difficulty in making public the victims’ observations or Mr. Lubanga’s response to them. Accordingly, the defense requested the appeals chamber of the International Criminal Court (ICC) to reclassify as public both the victim’s submissions and its own response. 

The defense filed as confidential its response to the victims’ observations on the basis that it had answered to certain allegations that appeared only in the confidential version of the victims’ observations. Subsequently, appeals judges ordered the victims to indicate the factual and legal basis for filing their observations as confidential. 

This Friday, appeals judges will make a ruling on the prosecution’s appeal against the stay of proceedings and the release order issued by trial judges for Mr. Lubanga, the former Congolese leader on trial over the conscription, enlistment, and use of child soldiers in armed conflict. Prosecutors allege that he committed the crimes during 2002 and 2003 while he headed the Union of Congolese Patriots. 

Marc Dubuisson, director of court services at the ICC, explained that the court’s Victims and Witnesses Unit (VWU) had confirmed that it had no security concerns in relation to the contents of the submissions being made publicly available. However, he added, the submissions had quoted information contained in confidential documents issued by the trial chamber or filed by the VWU and the Office of The Prosecutor (OTP).

The court’s registry was nonetheless ready to file a public redacted version of its submission pending the disclosure of confidential information contained therein or reclassification of respective court records.

Prosecutor Luis Moreno-Ocampo considered that the appeals chamber should not reclassify the confidential version of the victims’ observations, thereby making public the sources of information mentioned by the victims, unless the relevant portions of the confidential transcripts themselves were reclassified. “In the absence of such prior reclassification by the trial chamber, the prosecution considers that a reclassification of the unredacted version of the victims’ observations as public would not be appropriate,” stated the prosecutor.

All teams of lawyers representing victims in the trial have opposed the stay of proceedings, which was imposed by trial judges on July 8, 2010 following failure by the OTP to implement an order to disclose to the defense the identity of an individual who helped to contact prosecution witnesses.