On July 23, 2010, appeals judges at the International Court (ICC) ruled that Congolese war crimes accused Thomas Lubanga should stay in detention at The Hague. They ordered that Mr. Lubanga should remain in ICC detention pending the final decision on an appeal filed by prosecutors against an order issued by trial judges for his release.
Trial judges on July 15, 2010 ordered Mr. Lubanga’s release following their decision a week earlier to impose an unconditional stay on the proceedings of the case. They stated that an accused could not be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings might resume.
On July 16, 2010, the prosecution filed an appeal against this decision and submitted an application for suspensive effect of the appeal.
In their ruling, the appeals judges stated that an immediate implementation of the order to release Mr. Lubanga could render the resumption of the trial uncertain, should the appeals chamber later find in favor of the prosecution’s appeal against the decision to stay proceedings.
“In these circumstances, his release could potentially defeat the purpose of the present appeal and that of the appeal against the decision to stay proceedings, and the granting of suspensive effect is therefore appropriate,” the judges wrote in their ruling.
The judges who are handling the prosecution’s appeal are Judges Sang-Hyun Song, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.
They stated that the factors that led the appeals chamber to grant suspensive effect of the appeal against the previous decision to release Mr. Lubanga remained equally valid in the present case. They said they had reached this conclusion despite the fact that this was the second stay of proceedings in the case, that trial judges had characterized the stay as unconditional, that Mr. Lubanga had been in ICC detention for more than four years, and that the prosecution had closed its case.
The appeals judges also stated that they were aware that Mr. Lubanga had undertaken to remain at the disposal of the court for the duration of the appeal and that he was subject to a travel ban and did not have travel documents.
“The Appeals Chamber notes that these are all factors to be taken into account, but concludes that they do not outweigh the potential impact on the proceedings, should the Appeals Chamber decline to grant suspensive effect,” they said.
In an appeal filed on July 16, 2010, ICC prosecutor Luis Moreno-Ocampo stated that Mr. Lubanga might flee if he were released.
Mr. Lubanga – the alleged former head of the Union of Congolese Patriots (UPC) whose armed wing used child soldiers – has been in detention in The Hague since March 2006. His trial over the conscription, recruitment and use of child soldiers started in January last year. He is the first person to be tried by the ICC, the only permanent international court that tries perpetrators of genocide, crimes against humanity, and war crimes.