Judges Order Lubanga's Release

Judges at the International Criminal Court, ICC, on July 15 ordered the unconditional release of Thomas Lubanga, who is accused of war crimes and has been in detention in The Hague since March 2006.

However, Lubanga, whose trial was the first to open at the ICC, could remain in detention if prosecutors appeal the release order.

"The chamber has imposed an unconditional stay of proceedings, and bearing in mind the wholesale uncertainty of whether this case will restart at some future time, together with the length of time the accused has already been in custody, anything other than unrestricted release will be unfair," Presiding Judge Adrian Fulford said in a ruling.

He added that the defendant would not be released until the appeals process had been completed.

Speaking to journalists in The Hague on July 16, ICC chief prosecutor Luis Moreno-Ocampo confirmed that his office had lodged an appeal against the decision to release Lubanga.

The judges added that the order releasing the accused would only be implemented after arrangements had been made for his transfer to a state obliged to receive him.

Prosecutors at the ICC allege that Lubanga was the leader of the Union of Congolese Patriots, UPC, which used child soldiers in inter-ethnic fighting in the Congo's Ituri province.

Judges halted the proceedings in Lubanga's trial last week, citing abuse of the court's process. Judges said the immediate cause of the stay of proceedings was the failure of the prosecution to implement an order by judges to reveal the identity of intermediary 143, who helped prosecution investigators identify people who could testify against Lubanga.

Prosecution staff claimed that revealing the identity of intermediary 143, before protective measures were put in place for him, would have put his life at risk.

This is the second time that judges in Lubanga's trial have stayed the proceedings because of abuse of process and ordered his release.

The first time was on June 13, 2008, when the judges decided that a fair trial of the accused was not possible given the non-disclosure by the Office of The Prosecutor, OTP of potentially exculpatory materials.

The prosecution argued that that these materials were covered by confidentiality agreements.

In October 2008, the appeals chamber overturned the ruling of the trial chamber, paving the way for the start of the trial on January 26, 2009.

Both the OTP and the legal representatives of victims participating in the trial opposed Lubanga's release in presentations made in court on July 15.

Paolina Massidda, the head of the Office of the Public Counsel for Victims, said, “It would also appear that the conditional or temporary stay of proceedings, as is the case here, should not inevitably lead to the release of the [accused].”

She added that, given the serious nature of the charges against Lubanga, it would be unwise to set the defendent free at this stage.

Prosecution coordinator Sara Criscitelli also urged the court not to release Lubanga.

“If released there's no way to guarantee his return,” she said. “And, with the appeal, there is the possibility that the judgement... would be reversed and the case would be back to trial.”

IWPR's weekly updates of the Thomas Lubanga trial are produced in cooperation with the Open Society Justice Initiative of the Open Society Institute, OSI. Daily coverage of the trial can be found at http://www.lubangatrial.org/.