To release or not to release Thomas Lubanga is the big question that International Criminal Court (ICC) appeals judges will tomorrow pronounce themselves on.
In detention at the ICC since March of 2006, the 49-year-old former vegetables trader-turned-rebel leader two years ago had a similar expectation of getting freed. On the verge of the planned opening of his trial back in 2008, trial judges had ordered his release after the prosecution failed to disclose to him potentially exculpatory evidence.
Appeals judges overturned that release order, and in January of last year his trial started, becoming the first to be conducted by the court founded in 2002.
Two years after the initial order for his unconditional release got overturned, things seem to have come full circle for Mr. Lubanga, as he once again waits to hear the verdict of appeals judges on his release.
Like the previous occasion, trial judges declared that court process had been abused by the prosecution, rendering it impossible to conduct a fair trial for Mr. Lubanga. This time round trial judges ordered his release on July 15, 2010, but upon prosecutor Luis Moreno-Ocampo’s appeal, this order was stayed pending tomorrow’s verdict.
While much attention from various corners of the world might be focused on Mr. Lubanga tomorrow, he is not a man who has always been in the limelight. As fighting raged around his Congolese hometown of Bunia in the years prior to 2000, the psychology graduate from Congo’s University of Kisangani continued to go about his business of selling beans in the local market.
He was a well-known and well liked trader who, according to many that knew him, did not throw around his superior academic credentials as he interacted with the mainly semi-literate traders in Bunia market.
This virtue would subsequently help thrust him into the leadership of a militia formed to protect his Hema ethnic community against hostile neighbors. The community – whose militia had been trained by Ugandan soldiers both inside Congo and in Uganda – needed an educated and articulate person at its helm. The humble beans trader was chosen as the right man for the job, initially as a spokesperson, and shortly afterwards as the president of the Union of Congolese Patriots (UPC).
Initially the UPC militia protected the land of the Hema, but then, prosecutors say, it turned into a killing machine that systematically massacred members of the Lendu ethnic community, raped women and girls, conscripted children, and pillaged villages.
The primary issue trial judges grappled with between January 2009 and July 2010 as they heard the case against Mr. Lubanga was whether he bore responsibility for recruiting, enlisting, and using children under the age of 15 years. Some witnesses said he did; others stated that he was a political figurehead whose docket excluded military matters.
However, that will not be the question appeals judges will pronounce themselves on tomorrow. Instead, it will be whether, in light of the abuse of process that prompted trial judges to stay the proceedings, a fair trial for Mr. Lubanga could still be possible.
Mr. Lubanga’s hopes for freedom do not have to rest entirely with tomorrow’s judgment. If the appeals court allows the trial to continue, it might take only a few weeks after proceedings resume for the defense to ask trial judges to consider dismissing the case on the grounds that agents of prosecution investigators forged evidence and coached witnesses.
Still, Mr. Lubanga will likely be hoping that judges will tomorrow let him return to his wife and six children in Bunia – four and a half years after he was transferred to The Hague.