Judges at the International Criminal Court (ICC) have today ordered the unconditional release of war crimes accused Thomas Lubanga Dyilo, who has been in detention in The Hague since March 2006.

However, Mr. Lubanga – the first person to be tried at the ICC – would remain in detention if prosecutors appealed the release order.

“The chamber has imposed an unconditional stay of proceedings, and bearing in mind the wholesale uncertainty of whether this case will restart at some future time, together with the length of time the accused has already been in custody, anything other than unrestricted release will be unfair,” presiding judge Adrian Fulford said in a ruling this afternoon.

He said Mr. Lubanga should therefore be released unconditionally if the prosecution did not appeal the release order within five days. “If an appeal is filed within the five-day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the appeals chamber has resolved whether this order granting release is to be suspended,” the judge stated.

The judges added that the order releasing the accused would only be implemented after arrangements had been made for his transfer to a state obliged to receive him.

Prosecutors at the ICC allege that Mr. Lubanga was the leader of the Union of Congolese Patriots (UPC) and of the Patriotic Forces for the Liberation of Congo (FPLC), which used child soldiers in inter-ethnic fighting in the Congo’s Ituri Province. The prosecutors also charge that UPC used hundreds of young children – some as young as 11 years – to kill, pillage, and rape.

Both the Office of The Prosecutor (OTP) and the legal representatives of victims participating in the trial opposed Mr. Lubanga’s release in presentations made in court this afternoon.

Arguing that the judges’ order of last week was a stay of proceedings rather than a halt of the proceedings, Paolina Massidda, the Principal Counsel of the Office of the Public Counsel for Victims, said, “It would also appear that the conditional or temporary stay of proceedings as is the case here should not inevitably lead to the release of the [accused].”

“The situation currently prevailing in the eastern part of DRC still unstable, the legal representatives of victims would also like to draw the chamber’s attention to the fact that the accused over the course of the trial learnt the identity of all the witnesses from the OTP as well as the identities of many victims taking part in this trial,” stated Massidda. “In this particular case, the charges still stand against the accused. They are serious charges and we must continue to take into account the seriousness of these charges. Thus, we are asking the chamber to uphold and continue the detention of Mr. Lubanga.”

Prosecution coordinator Sara Criscitelli also argued that since the trial had not been put off permanently, it was not desirable to release Mr. Lubanga. Moreover, she added, the accused constituted a risk of flight.

“If released there’s no way to guarantee his return. And with the appeal there is the possibility that the judgment on appeal would be reversed and the case would be back to trial and a person has been released and may not be in the jurisdiction,” Criscitelli stated.

Last Thursday halted the proceedings in Mr. Lubanga’s war crimes trial, citing abuse of the court’s process. Judges said the immediate cause of the stay of proceedings was the failure of the prosecution to implement an order by judges to reveal the identity of intermediary 143, who helped prosecution investigators identify people who could testify against Lubanga.

Prosecution staff claimed that revealing the identity of intermediary 143, before protective measures were put in place for him, would have put his life at risk.

This is the second time that judges in Mr. Lubanga’s trial have stayed the proceedings because of abuse of process and ordered his release. The first time was on June 13, 2008, when the judges decided that a fair trial of the accused was not possible given the non-disclosure by the OTP of potentially exculpatory materials. The prosecution argued that that these materials were covered by confidentiality agreements.

In October 2008, the appeals chamber overturned the ruling of he trial chamber, paving the way for the start of the trial on January 26, 2009.

During today’s hearing, lead defense attorney Catherine Mabille said that the Prosecutor was “the one and only person” responsible for the delays caused by this new stay of proceedings.

“Mr. Thomas Lubanga has been incarcerated since 17th March 2006, in other words for more than four years. The defense today argues that Thomas Lubanga must be released because the delay is no longer in any way, shape, or form, reasonable.”

Mr. Lubanga’s defense was not opposed to the OTP’s application to appeal the stay of proceedings. It is expected that the prosecution will lodge their application within the next five days, which will mean that Mr. Lubanga will remain in detention until the appeals chamber makes a ruling.

(Editor’s note: See the post below for the full (unofficial) transcript of the judges’ ruling.)