Appeals judges at the International Criminal Court (ICC) will next Friday deliver judgment on the prosecution’s appeal against the release of Congolese war crimes accused Thomas Lubanga.
In a statement issued today, the court said judgments on the prosecution’s appeals against the trial chamber’s decisions to stay proceedings in the case and to release Mr. Lubanga would be delivered in open court. The session will be transmitted with no delay via the web streaming facility on the ICC website.
On July 8, 2010, trial judges halted proceedings in the trial – the first to be conducted by the ICC – on the grounds that a fair trial was no longer possible due to failure by the prosecution to implement orders issued by judges. Trial judges had ordered the Office of The Prosecutor (OTP) to disclose to the defense the name and other identifying information for ‘intermediary 143’, an individual who helped the OTP to contact witnesses that testified against Mr. Lubanga.
However, the prosecution stated that it could not disclose the identity of the intermediary before protective measures such as relocation had been put in place for him. According to the OTP, if the identity of the intermediary was disclosed before he was offered protection, he would have been at risk of reprisal attacks from Mr. Lubanga’s supporters in eastern Congo.
As a result of the prosecution’s failure to disclose the intermediary’s identity, the trial chamber presided over by Judge Adrian Fulford on July 15, 2010 ordered Mr. Lubanga’s release, stating that an accused could not be held in preventative custody on a speculative basis, “namely that at some stage in the future the proceedings may be resurrected.”
Following the prosecution’s appeals, the appeals chamber ruled that Mr. Lubanga should stay in custody until judgment was delivered on the OTP’s applications.
Mr. Lubanga is on trial over the enlistment, conscription, and use of children under the age of 15 years in armed conflict in the Democratic Republic of Congo (DRC). His trial started on January 26, 2009 and the prosecution rested its case on July 14, 2009. The defense case opened on January 27, 2010.
Prosecutors at the ICC allege that Mr. Lubanga was the founder of the Union of Congolese Patriots (UPC) and the Patriotic Forces for the Liberation of Congo (FPLC). Prosecutors also charge that Mr. Lubanga was the commander-in-chief of the FPLC from September 2002 to at least the end of 2003. He has denied the charges, and focused his defense on the alleged corruption of evidence, including coaching of witnesses, purportedly by intermediaries of the OTP.
At the time the trial was halted, the defense was on the verge of asking judges to dismiss the trial on the grounds of abuse of process. The defense had already called all the witnesses it had lined up to testify to the alleged corruption of evidence.
Owing to the testimonies of various defense witnesses about the alleged corruption of evidence, judges ordered the OTP to produce some of its investigators and intermediaries who worked on the prosecution’s witnesses.
While cross-examining one of the intermediaries, the defense told judges that it could not continue with the questioning until the identity of ‘intermediary 143’ was disclosed. That was when trial judges issued the order for the disclosure of this intermediary’s identity. The OTP on September 13, 2010, disclosed the identity of this intermediary to the defense after protective measures had been instituted for him.