Prosecutors at the International Criminal Court (ICC) have asked appeals judges to overturn a trial chamber order for the release of Congolese war crimes accused Thomas Lubanga.

The prosecutors would like the appeals chamber to order the continued detention of Mr. Lubanga, the alleged former head of the Union of Congolese Patriots (UPC) whose militia used child soldiers in inter-ethnic fighting during 2002 and 2003.

In an appeal filed on July 16, 2010, ICC prosecutor Luis Moreno-Ocampo stated that Mr. Lubanga might flee if he were released. 

On July 15, 2010, trial judges ordered that Mr. Lubanga should be released unconditionally. However, the judges added that if prosecutors appealed the release order within five days, Mr. Lubanga would stay in detention until the appeals chamber issued a ruling.

Earlier on July 8, 2010, the trial chamber presided over by Judge Adrian Fulford ordered that proceedings in the case be stayed on grounds of abuse of court process. This was after the prosecution failed to implement an order from judges to reveal to the defense the identity of an individual who helped identify and contact witnesses who testified against Mr. Lubanga.

The prosecution submitted that revealing the identity if this individual who goes by the court name of ‘intermediary 143’ would have endangered him since no protective measures had been instituted for him.

In the appeal, ICC prosecutor Moreno-Ocampo argues that the appeals chamber has previously recognized in similar circumstances that releasing an accused pending appeal against the release decision could defeat the purpose of the appeal. It could also defeat the prosecution’s appeal against the decision to stay proceedings.

“Where the release of the accused has been ordered, suspensive effect is required in order to avoid preempting the subject of the appeal – i.e. the decision whether to release the accused – and rendering its outcome moot,” he added.

The prosecutor argued that Mr. Lubanga’s release would have adverse and possibly dire consequences on witnesses and the elicitation of evidence.

Quoting an appeal chamber ruling of October 2008, the prosecutor contended that throughout the proceedings, the accused had been detained on the basis of repeated findings that his detention was necessary to ensure his appearance at trial, and that there existed the real possibility that the court was likely to be unable to ensure his presence at trial if he was released.

“In its decision on release, the [trial] chamber did not purport to conclude that the risk of flight has abated or indeed address risk of flight at all. Thus, the previous findings regarding the possibility of flight are undisputed and undiminished,” stated Mr. Moreno-Ocampo’s appeal.

The prosecutor also argued that the ICC was able to obtain custody of Mr. Lubanga because he was already in the detention in the Democratic Republic of Congo (DRC), a circumstance he claimed was not likely to recur. He mentioned that Bosco Ntaganda – the other suspect in relation to the charges Mr. Lubanga faces, of conscripting, recruiting and using child soldiers in armed conflict – remained at large more than four years after the issuance of the arrest warrant against him.

“There is thus a clear and present danger that if the accused is released, but the appeals chamber subsequently overturns the decision, the court will not be able to regain custody of the accused,” Moreno-Ocampo stated.

In addition, the release of the accused was founded on a decision of the trial chamber for stay of proceedings against Mr. Lubanga which the prosecution was contesting, Moreno-Ocampo said.

The prosecution is arguing in a separate appeal that it did not willfully refuse to comply with an order of the judges or express that its protection duties justified non-compliance with that order. Further, it is submitting that the stay of proceedings was not necessary.

The court is currently on the summer judicial recess which ends on August 9, 2010. It is not clear when the appeals judges will offer an indication of when the prosecution’s appeal will be considered.