International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo claims in an appeal that the order by trial judges for a stay of proceedings in the Thomas Lubanga war crimes trial was erroneous and excessive.

While disputing the grounds on which judges based their decision, the prosecutor also contends in a July 30, 2010 filing that the trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings.

On July 8, 2010, trial judges ordered the stay of proceedings due to abuse of court process which they said resulted from failure by prosecutors to disclose the identity of a person who helped them to assemble their witnesses. The judges said that failure to disclose the identity of this individual, who is referred to in court as ‘intermediary 143’, rendered it impossible to ensure a fair trial for Mr. Lubanga.

Subsequently, the trial judges on July 14, 2010 ordered Mr. Lubanga’s release, stating that he could not be held in preventative custody based on speculation that proceedings might resume at some stage in the future. Appeals judges have since ruled that Mr. Lubanga should remain in ICC detention until the prosecution’s appeal has been decided. Prosecutors are appealing both the stay of proceedings and the release order.

Describing the stay of proceedings as having been “excessive and disproportionate”, Mr. Moreno-Ocampo argues that “the chamber further erred in failing to grant a proportionate remedy in the face of what it characterized as the prosecution’s errors of approach and attitude”.

He stated: “The chamber had at its disposal a range of alternative remedies that would not affect in such a drastic and final way the continuation of trial proceedings, a measure that impacts on the rights not only of the prosecution but also of victims and of the communities where the crimes occurred.”

Mr. Lubanga is on trial over the recruitment, conscription, and use of child soldiers in inter-ethnic fighting during 2002 and 2003. According to ICC prosecutors, the crimes were committed in Ituri province in the Democratic Republic of Congo (DRC) while Mr. Lubanga allegedly headed the Union of Congolese Patriots rebel group.

Mr. Moreno-Ocampo argues that article 71 of the statute that established the ICC stipulates the consequences of non-compliance with a court order as ‘sanction for misconduct’. He notes that while trial judges indeed issued a formal warning to the Prosecutor and the Deputy Prosecutor in line with this provision, they went ahead and also ordered a stay of proceedings.

In the 39-page filing, which lays out the prosecution’s appeal arguments, Mr. Moreno-Ocampo suggests that trial judges could have suspended the trial for one or two weeks to allow for protective measures to be instituted for ‘intermediary 143’ before his identity was disclosed.

In failing to obey the order by judges, prosecution staff claimed that revealing the intermediary’s identity before protective measures were put in place for him would have put his life at risk. The intermediary is based in the DRC.

“The prosecution will seek to show that it did not receive a reasonable opportunity to present its views before variation of intermediary 143’s protective measures was adopted and that its insistence to present its views afterwards was wrongly considered to be defiance of the court’s authority,” the filing reads.

Mr. Moreno-Ocampo also points out that trial judges did not seriously test the availability or effectiveness of measures which could have enabled the trial to continue even as arrangements were being made for disclosure of the intermediary’s identity. “For example, the chamber failed to fully explore its initial proposal of proceeding with the defense cross-examination and deferring to a later stage those questions that required the defense’s knowledge of intermediary 143’s identity,” he argues.

Mr. Lubanga’s defense is yet to file its response to the prosecutor’s document spelling out its arguments for appeal. Although judges are on judicial recess, over the last two weeks they have issued a number of rulings, signaling that the appeal might be disposed of in a short period of time.

Mr. Lubanga has been in detention at the ICC since March 2006. His trial started on January 26, 2009, while the defense case opened on January 27, 2010.

Last Friday, the prosecution asked judges to let the case be heard in court. While noting that the appeals chamber had never entertained in-court argument in an interlocutory appeal, the prosecution argued that given the importance of the case and the complexity of the issues, oral argument would be appropriate in the current appeal. Judges are yet to make a ruling on this request.

The judges hearing the appeal are Judge Sang-Hyun Song, Presiding, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.