In what is likely to be the final submission before appeals judges decide on the way forward in the appeal against the release of Mr. Thomas Lubanga, defense attorneys have insisted that the stay of proceedings imposed by trial judges was “irreversible”.

In their responses to submissions by legal representatives of victims, Mr. Lubanga’s attorneys stated that the arguments advanced by the victims’ lawyers could not stand because they were based on the “false assumption” that the stay of proceedings was temporary.

The defense also dismissed the arguments by victims’ lawyers that if Mr. Lubanga was released there was a risk that he could escape from ICC jurisdiction or that he would commit new offenses. The victims’ lawyers are supporting the prosecution’s appeals against the stay of proceedings and the order for Mr. Lubanga’s release from International Criminal Court (ICC) detention.

“The trial chamber made it clear during the hearing on July 15, 2010, that the stay of proceedings was permanent and was not accompanied by any condition,” stated Catherine Mabille, the lead defense attorney, in an August 27, 2010 filing. She added that the submissions by Paolina Massidda, the Principal Counsel of the Office of the Public Counsel for Victims, lacked merit because they falsely argued that the stay of proceedings was of a temporary or conditional nature.

“The [trial] chamber handed down a permanent and irreversible suspension of proceedings,” stated Ms. Mabille. She added, “The appeals chamber has already noted that in such circumstances, the accused should be released because his continued detention would be incompatible with the exercise of the court’s criminal jurisdiction.”

In filings supporting the prosecution’s appeals, Ms. Massidda referred to two statements made by trial judges in the order for a stay of proceedings in the war crimes trial. In one, the judges stated that “whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done”. This was in reference to the failure by the prosecution to implement an order to reveal to the defense the identity of an intermediary of the Office of The Prosecutor (OTP).

In another statement Ms. Massidda quoted, the judges stated, “Whilst the stay of the proceedings is in place, the chamber will deal with any application for leave to appeal on this or any related issue that is filed”.

According to Ms. Massidda, this indicated that the stay of proceedings was conditional. She argued that trial judges therefore erred in ordering the release of Mr. Lubanga, the former Congolese rebel leader on trial over the recruitment, conscription, and use of children under 15 years of age in armed conflict.

In his appeal, ICC prosecutor Luis Moreno-Ocampo has stated that the stay of proceedings was “certainly conditional” within the meaning of the appeals chamber’s prior judgment, “given that the proceedings were not terminated thus barring permanently the court from exercising its jurisdiction.”

“Regardless of the terminology used, the stay ordered by the trial chamber was imposed due to specific circumstances… it is equally clear that the chamber contemplated that the stay could and would be lifted if those circumstances changed,” stated Moreno-Ocampo.

According to the prosecution, the appeals chamber has identified two different types of stays in its prior judgment: one is a “permanent and irreversible stay of the proceedings”, which terminated a case; the second one is a conditional stay “which is neither an acquittal nor a final termination of the proceedings, but may be lifted in appropriate circumstances.”

Mr. Moreno-Ocampo has asked appeals judges to allow oral arguments in the appeals “given the importance of the case and the complexity of the issues.” With all parties having filed their submissions, it is anticipated that judges will imminently give an indication of how the appeal will progress.