Judges Order the Release of Thomas Lubanga

From All-Africa:

Today, Trial Chamber I of the International Criminal Court ordered the release of Thomas Lubanga Dyilo as “an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.”

The Judges had previously determined that a fair trial was no longer possible due to the Prosecutions’ refusal to implement the Chamber’s decisions. On 8 July, the Judges imposed an unconditional stay on the proceedings because of an abuse of process of the Court.

The Prosecution now has five days to appeal the order granting Mr. Lubanga’s release and to make a request to suspend its effect. If the prosecutors do so, “the Accused shall not leave detention until the Appeals Chamber has resolved whether this order granting release is to be suspended,” explained Presiding Judge Fulford. The Judges also observed that the release of the Accused “shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him.”

Chief Prosecutor, Mr. Luis Moreno-Ocampo, has already reacted to the Chamber’s orders. “We regret the disturbance caused, but this shows that this is a court of justice. Judges rule and the Office of the Prosecutor takes its responsibilities very seriously,” he has said to the media. “We are confident that the protective measures required will be implemented very soon, [referring to Intermediary 143] and that the Appeals Chamber will clarify the legal issues at hand. The victims of Thomas Lubanga’s alleged crimes must remain confident that justice will be done in this case.”

Before the Chamber reached its decision, the Legal Representatives of Victims also expressed their concerns regarding the Accused’s possible release. “The decision to stay the proceedings does not justify the release of Mr. Lubanga,” said Paolina Massida. “This is a temporary stay,” stressed the Counsel, who also reminded the Chamber of the seriousness of the charges against the Accused.

But contrary to the victims’ lawyers and the Prosecution, who interpreted the Chamber’s decision to stay the proceedings as provisional and conditioned to the Prosecutor’s compliance to the bench’s orders, Judge Fulford made it clear to the trial participants: “This cannot be described as a temporary stay. It has not been imposed conditionally. The trial has been halted because it is not longer fair.”

There was no alternative for the Prosecution other than to elect its appeal rights. In their decision, the Judges also declared the leave to appeal granted.

On 8 July, the Chamber concluded that the Prosecutor had breached one of its fundamental obligations, which made the fairness of the trial no longer possible. In the opinion of the Judges, the Prosecutor had deliberately refused to implement the Chamber’s “unequivocal decisions” to disclose the identity of OTP Intermediary 143. Therefore it was “necessary to stay these proceedings as an abuse of the process of the Court.”

The Prosecution had argued that it could not disclose the identity of Intermediary 143 prior to the implementation of necessary protective measures because “it has the statutory obligation to protect persons put at risk on account of the Prosecution’s actions.” The Prosecutor added he would rather face adverse consequences in his litigation than expose a person to risk on account of prior interaction with his Office. “This is not a challenge to the authority of the Chamber. It is instead a reflection of the Prosecution’s own legal duty under the Statute,” he expressed. in his writing submissions.

However, as Judge Fulford said in his ruling today, “in the opinion of the Chamber, Intermediary 143 was not materially at risk on account of a disclosure order given its limited nature [restricted to Counsels, assistants, and the resource person in the DRC, and under the condition that the information wouldn´t be used by the Defence for investigative purposes].” “It is observed,” continued the Judge, “that the Victims and Witness Unit agreed with this assessment.”

For the Chamber, Intermediary 143 is a “potentially critical individual whose identity must be disclosed and whose role should be investigated during the course of the presentation of the Defence.” The issue of the OTP intermediaries became a critical ingredient in this case since Mr. Lubanga´s lawyers alleged that these individuals coerced Prosecution witnesses into giving false testimony.

This is the second occasion on which the Chamber stayed the proceedings because of the Prosecution’s abuse of process. On 2 July 2008, the Judges decided that a fair trial was no longer possible given that the Prosecutor had not disclosed potentially exculpatory evidence to the Accused, covered by certain confidentiality agreements with its sources.

Thomas Lubanga Dyilo is accused of having committed, as co-perpetrator, the war crimes of enlisting and conscripting children under the age of 15 years into the Forces patriotiques pour la libération du Congo and using them to participate actively in hostilities in Ituri, a district of the eastern province of the Democratic Republic of the Congo (DRC), between September 2002 and August 2003.

He has been in custody since 17 March 2006 – more than four years.

Photo courtesy of the Guardian.