Friday 8 October, 2010 - The Appeals Chamber of the International Criminal Court reverses Trial Chamber I's rulings to stay proceedings and to release Thomas Lubanga Dyilo. The judges consider that the Trial Chamber erred by resorting immediately to a halt of the trial without first imposing sanctions to bring about the Prosecutor's compliance with its orders. "Sanctions are a key tool for Chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having to have recourse to the drastic remedy of staying proceedings," stated Judge Song.
As scheduled, at 14.30 in the afternoon, the presiding judge in these appeals, Judge Sang-Hyun Song, enters the room to deliver the judgments in open court. His appearance silences a packed public gallery. The first five minutes are spent photographing the scene, which shows the audience the importance of this moment. The accused and the victims in this trial have been waiting for three months for the words they are about to hear.
On 8 July 2010, Trial Chamber I ordered to stay the proceedings considering that the fair trial of the accused was no longer possible because the Prosecution had failed to comply with the Chamber's orders. The judges had asked the Office of the Prosecutor to confidentially disclose to the Defence the identity of intermediary 143; however, the Prosecutor did not implement these orders, arguing that he was acting according to his statutory obligations to protect persons at risk. Following the decision to stay the proceedings, Trial Chamber I ordered, on 15 July, the release of the accused. The Prosecutor appealed these decisions, suspending the order to free Thomas Lubanga. The future of this landmark trial was then in the hands of the Appeals Judges.
Before delivering the Appeals Chamber's judgement, Judge Song asks the trial participants to introduce themselves. Defence Lead Counsel, Catherin Mabille, breaks the ice. She is accompanied by the whole Defence team and her client, Thomas Lubanga Dyilo, who today dresses in traditional African clothes. Her introduction is followed by the Prosecution, today chaired by the Chief Prosecutor, Luis Moreno-Ocampo, and the Legal Representatives of the Victims.
"Orders of the Chambers are binding and should be treated as such by all parties and participants unless and until they are suspended by the Appeals Chamber," Judge Song commences, rejecting one by one the Prosecution's arguments. According to the Office of the Prosecutor, Trial Chamber I erred when it found that the Prosecution refused to comply with the Chamber's orders and that the judges misconstrued the Prosecutor's position with respect to his duties of protecting victims, witnesses and others. "It is undisputed that the Prosecutor did not comply with the orders to disclose the identity of intermediary 143 (...) Even if there is a conflict between the orders of a Chamber and the Prosecutor's perception of his duties, the Prosecutor is obliged to comply with the orders of the Chamber," says Judge Song. The presiding judge makes all hold their breath when he also stresses that "under the Statute, the Trial Chamber is the ultimate guardian of a fair and expeditious trial." For thirty minutes, the public thought it was witnessing the end of this trial.
But then, Judge Song offers a third consideration. "However, the Trial Chamber erred by resorting immediately to a stay of proceedings without first imposing sanctions to bring about the Prosecutor's compliance with its orders," reads Judge Song. "Sanctions are a key tool for Chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having to have recourse to the drastic remedy of staying proceedings."
"The decision to stay proceedings must be reversed," he concludes. "And as the decision to release Mr Lubanga Dyilo was predicated entirely on the decision to stay proceedings, which is reversed, thus the decision to release the accused must also be reversed."
Only a few minutes after the delivery of the judgement, the Office of the Prosecution make a statement welcoming the decision: "Victims can rest assured that his trial will be continued, and that his criminal responsibility will be decided by the judges at the conclusion of a fair trial," states Luis Moreno-Ocampo.
Mr. Lubanga, who has been in preventive custody for almost four years, will stay in prison awaiting judgement. The ICC has not indicated when the trial will resume.
Thomas Lubanga Dyilo is accused of having committed, as co-perpetrator, the war crimes of enlisting and conscripting children under the age of 15 years into the Forces patriotiques pour la libération du Congo (FPLC), and using them to participate actively in hostilities in Ituri, a district of the eastern province of the Democratic Republic of the Congo (DRC), between September 2002 and August 2003.
