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.

In submissions to appeals judges, Luc Walleyn stated that if the stay of proceedings in the trial was confirmed, the war crimes committed in Congo’s Ituri province would not only remain unpunished, but there would also be no judgment on the crimes.

“After four years of participation in the proceedings, the victims would never have the opportunity to expose the harm they suffered, and their requests for compensation would fail,” stated the attorney.

Moreover, he added, Mr. Lubanga would lose the opportunity to convince the court, public opinion and victims, of his innocence since a substantive debate on the charges would never occur. “In the eyes of victims, all seems at odds with the objectives of the creation of the ICC,” submitted Mr. Walleyn in the filing of August 23, 2010.

Paolina Massidda, the Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC), has argued in a separate filing to the appeals chamber that releasing Mr. Lubanga could “now more than before seriously endanger the safety of victims and witnesses involved in the case.” Some 103 victims are participating in the trial.

Trial judges at the ICCon July 14, 2010 ordered the release of Mr. Lubanga – the first person to be tried by the world court since its formation in 2002 – following a halting of proceedings a week earlier. The judges said the release was inevitable because it was uncertain whether the trial would resume in the near future.

However, ICC prosecutor Luis Moreno-Ocampo has appealed both the stay of proceedings and the release order for Mr. Lubanga, who is accused of conscripting, enlisting, and using child soldiers in armed conflict. Prosecutors claim that the crimes were committed during 2002 and 2003 while he purportedly led the Union of Congolese Patriots (UPC) and its armed militia.

In his filing in support of the prosecution’s appeals, Mr. Walleyn pointed out that the Rome Statute, which founded the ICC, has fundamentally changed international justice by providing not only for the participation of victims in proceedings, but also the possibility for them to obtain redress. Victims had thus relied on the ICC, seeking to participate in the proceedings and in some instances “taking significant risks by giving evidence.” Three victims have testified at the trial that started on January 26, 2009.

“For over four years, these victims have lived in a situation of uncertainty and insecurity. Some have been threatened and physically assaulted because of their participation in the proceedings,” Mr. Walleyn argued. He added that some of the victims have not been incorporated into the court’s protection program; and that the prospect of Mr. Lubanga’s release had raised concerns about revenge actions since he knows their identities and addresses.

Prosecutors and Mr. Lubanga’s defense were supposed to have responded to the victims’ submissions at the end of last week. This would then have paved the way for appeals judges to determine the next steps in the appeal. Prosecutors have proposed oral hearings, but the judges are yet to pronounce themselves on the request.

According to Mr. Walleyn, Mr. Lubanga’s release was ordered not because he had spent a long time in detention – he has been in ICC custody since March 2006 – but because an indefinite stay on proceedings had been ordered. He argued that it would therefore be improper for the appeals chamber to decide on his release without deciding on the order for a stay of proceedings.

The trial chamber presided over by Judge Adrian Fulford ordered the stay of proceedings following the failure by prosecutors to disclose to the defense the identity of an intermediary, who helped to identify prosecution witnesses. Prosecutors said then that the safety of that individual would be endangered if his identity were immediately disclosed before protective measures were put in place.

Mr. Walleyn said the victims believed that the unconditional stay of proceedings ordered by trial judges was “disproportionate, premature and unjustified.”

In a filing to the appeals chamber, a legal representative of the victims argued that the trial chamber presided over by Judge Adrian Fulford erred when it halted the proceedings in the trial on July 8, 2010, and then ordered Mr. Lubanga’s release a week later.

“As has been the case since the beginning of the proceedings, there is always a risk that Mr. Thomas Lubanga can evade the jurisdiction of the court, especially since he has now become aware of all the evidence against him,” said Paolina Massidda, the Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC).

Ms. Massidda added in the August 23, 2010 filing that since Mr. Lubanga now knows the identity of all witnesses, and given that the situation in the Democratic Republic of Congo (DRC) is still unstable, his release could “now more than before seriously endanger the safety of victims and witnesses involved in the case.”

The prosecution has appealed both the stay of proceedings and the release order issued by trial judges. Mr. Lubanga, who faces charges of conscripting, enlisting, and using child soldiers in armed conflict, will remain in ICC custody until appeals judges make a ruling. The appeals chamber has allowed victims to take part in both appeals.

Ms. Massidda contends that trial judges ordered Mr. Lubanga’s unconditional release without taking into consideration or assessing the risks that the release could lead to. She said those risks included the accused escaping the jurisdiction of the ICC, that he may obstruct or jeopardize the conduct of proceedings before the court, and that the safety of witnesses and victims could be endangered.

Moreover, Ms. Massidda stated that Mr. Lubanga’s release could cause a disturbance to public order, particularly in the Ituri region of DRC and also jeopardize ongoing and future investigations by the Office of The Prosecutor (OTP) at the ICC. “Such risks and dangers, taken together, justify undoubtedly the continued detention of Mr. Thomas Lubanga in custody, most importantly given the temporary nature of the stay of proceedings ordered,” concluded Ms. Massidda.

According to the OTP, Mr. Lubanga was the head of the Union of Congolese Patriots (UPC) rebel group, whose armed militia used children under the age of 15 years in inter-ethnic fighting in the Ituri province. Mr. Lubanga has denied the charges that he is alleged to have committed during 2002 and 2003. He has denied having had control over the UPC’s armed militia and claimed that he actually strived to demobilize child soldiers from the group.

Mr. Lubanga’s defense has also asserted that intermediaries of the OTP bribed and coached prosecution witnesses, including all the individuals who testified that they were former child soldiers in the UPC. The subject of the role intermediaries played in identifying witnesses has been so central that judges directed some of these intermediaries should take the witness stand.

Indeed, it was after the OTP failed to honor an order to disclose the identity of an intermediary, who goes by the court-given number of 143, that trial judges stayed the proceedings. The defense had said it needed to know the identity of this intermediary in order to continue with the questioning of a different intermediary, who at the time was under cross-examination.

In an August 17, 2010 ruling, the judges stated that the victims should present their views and concerns with respect to their personal interests in the issues raised in the appeal. The victims’ submissions were to be presented by August 23, 2010.

The appeals chamber found that the victims met all the criteria for participation in the appeals. Furthermore, the appeals chamber considered the participation of victims to be appropriate, noting that it was consistent with Mr. Lubanga rights, especially because he would have the right to respond to the submissions of the victims.

Prosecutors at the ICC are appealing an order for Mr. Lubanga’s release, which trial judges issued on July 15, 2010 following a stay of proceedings. Accused of enlisting, conscripting, and using children under the age of 15 years in armed conflict in the Democratic Republic of Congo during 2002 and 2003, Mr. Lubanga has been in ICC custody since March 2006.

The prosecution has supported the participation of victims in the appeal against the stay of proceedings and the release order. For its part, the defense chose not to respond to the victims’ application to participate in the appeal, but said it reserved the right to respond to the victims’ submissions if they were allowed to participate. Mr. Lubanga’s defense has in the past criticized the role victims have played in the trial, charging that they have often attempted to play a prosecutorial role.

Victims participating in Mr. Lubanga’s trial have been allowed to question defense and prosecution witnesses whose testimonies they felt directly affected their interests. Three of the 103 victims taking part in the trial also gave testimony in court.

In this week’s decision, appeals judges pointed out that victims could only participate in an appeal if they are already participating victims in the proceedings, and their personal interests must be affected by the issues on appeal. Besides, their participation must be at an appropriate stage of the proceedings and the manner of participation must neither be prejudicial nor inconsistent with the rights of the accused and a fair and impartial trial.

However, presiding judge Sang-Hyun Song appended a separate opinion to the ruling granting victims the right to take part in the appeal against Mr. Lubanga’s release. He stated that he agreed with the majority of the judges that victims should be allowed to make submissions on the appeal. However, he disagreed with the approach of the majority to participation of victims in appeals.

Judge Song stated, “In my view, victims who have been permitted to participate in proceedings giving rise to an appeal under that provision are participants in terms of regulation 64 (4) and (5) of the Regulations of the Court. They therefore have the right to file a response to the document in support of the appeal. There is neither a need for them to apply for participation, nor for the Appeals Chamber to rule on such applications.”

Other judges hearing the appeal are Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.

“The suspension of proceedings ordered by the chamber, far from being unjustified or excessive, appears to be the logical and inevitable consequence of the unacceptable behavior of the prosecutor in this case,” lead defense attorney Catherine Mabille said in an August 9 filing.

The prosecution has appealed the stay of proceedings ordered on July 8, 2010 by the trial chamber presided over by Judge Adrian Fulford, arguing that it was excessive and erroneous. Trial judges suspended the trial after the Office of The Prosecutor (OTP) failed to disclose to the defense the identity of an individual known as ‘intermediary 143’, who helped prosecution investigators identify people who could testify against Mr. Lubanga.

Luis Moreno-Ocampo, the ICC prosecutor, said in a July 30, 2010 filing that the trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings. The prosecution has appealed both the stay of proceedings and the order for Mr. Lubanga’s release, which was issued on July 15, 2010.

Ms. Mabille said it was not acceptable that the execution of a court order should be subject to whether the prosecutor considered it consistent with his rights and obligations. She added that the trial chamber was therefore right to stay the proceedings, as the prosecutor had declined to obey the release order and had indicated that he would not implement future orders that he felt conflicted with his interpretation of the prosecution’s obligations.

According to the defense, the only procedural right available to the prosecutor to challenge the disclosure orders was to appeal against the disclosure order “but this appeal [right] has not been used.”

The prosecution has not appealed against the disclosure orders, as it says it is now ready to effect them. At the time the orders were issued, prosecutors pleaded that if the identity of ‘intermediary 143’ were revealed to Mr. Lubanga’s defense before protective measures were instituted for the intermediary, his security would be compromised.

The prosecution requested to be given some time to have these protections instituted, but judges ruled that revealing the intermediary’s identity to Mr. Lubanga defense, including the defense’s agent in the Democratic Republic of Congo (DRC), would not pose a security risk to the individual.

The defense contends that the “delaying tactics” that the prosecutor attempted to use to deal with the disclosure orders amounted to an unequivocal expression of its refusal to comply with the orders. A day before the stay of proceedings, the defense stated that it could not proceed with the cross-examination of ‘intermediary 321’ who was at the time giving evidence if it was unaware of the identity of ‘intermediary 143.’

In the August 9 application, Ms. Mabille argued that the revelation of the identity of ‘intermediary 143’ was essential for a fair trial since this individual, as well as other intermediaries that go by the court-given numbers 321 and 316, and some unnamed employees of the OTP, allegedly participated in fabricating evidence.

The defense said it needed to know the identity of this individual for its questioning of the two other intermediaries and other OTP staff who had been summoned to give evidence, “and to assess his possible relationship with other actors in this fraudulent process.”

Mr. Lubanga, whom prosecutors allege was the founder of the Union of Congolese Patriots (UPC), is accused of enlisting, conscripting, and using child soldiers in armed conflict during 2002 and 2003. The ICC’s prosecutors also charge that he was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), an armed group allied to the UPC that used child soldiers in inter-ethnic fighting in Congo.

 The appeals chamber has not yet given an indication of whether it will allow a request by Mr. Moreno-Ocampo for oral hearings of the appeal. Mr. Lubanga’s trial started in January last year although he had been in ICC detention since March 2006.

In an August 6, 2010 filing, the prosecutor asked appeals judges to grant all four applications by victims’ lawyers to participate in the appeal proceedings, including any oral hearings that may be held.

Mr. Moreno-Ocampo suggested that victims’ lawyers should file their views and concerns in writing, and then prosecutors and the defense would respond to them. Moreover, the prosecutor proposed that victims’ lawyers should file one consolidated document containing their joint submissions for each of the appeal proceedings.

The prosecution has filed two appeals: one against an order to stay the proceedings and another against the order for Mr. Lubanga’s release. Trial judges on July 14, 2010 ordered that Mr. Lubanga should be freed subsequent to the imposition of a stay of proceedings a week earlier. Following the prosecution’s appeals, the former Congolese rebel leader will remain in detention until the appeals chamber makes a ruling.

Mr. Lubanga’s attorneys have told appeals judges that they do not intend to respond to the applications for victims to participate in the appeal proceedings. The judges are yet to make a ruling on the matter. Equally, the date for the start of the appeal proceedings is yet to be announced.

Mr. Moreno-Ocampo said in his filing that “the prosecution considers that the issues in this appeal plainly affect the personal interests of the victims. The decision to stay the proceedings has brought this case to a halt, directly impacting on the victims’ ability to present their interests.” Besides, the appeals chamber had previously ruled that the personal interests of victims were affected by issues arising out of an appeal regarding the release of the accused, he said.

Victims participating in Mr. Lubanga’s trial have been allowed to question defense and prosecution witnesses whose testimonies they felt directly affected their interests. Three of the 103 victims taking part in the trial also gave testimony in court.

However, Mr. Lubanga’s defense has been critical of the role victims have played in the trial, charging that they have attempted to be prosecutors too, often taking witnesses through the same questioning routine already covered by prosecutors. This, according to the defense, has subjected these witnesses to needless repeat questioning and in the process, added to the length of the trial. Mr. Lubanga has been in ICC detention since March 2006. His trial started in January last year.

Prosecutors at the ICC allege that Mr. Lubanga was the leader of the Union of Congolese Patriots (UPC) and of the Patriotic Forces for the Liberation of Congo, which used child soldiers in inter-ethnic fighting in the Congo ’s Ituri Province . Prosecutors also charge that during 2002 and 2003, the UPC used hundreds of young children – some as young as 11 years – to kill, pillage, and rape.

Victims’ lawyers contend that all articles and rules governing victim participation in the proceedings before the court indicate that this participation is possible at all stages, including interlocutory appeals. In a July 26, 2010 application, Luc Walleyn, who represents 24 victims, contended that the victims considered that they had a personal interest in the proceedings, particularly because “what is at issue is not interim release under the supervision of the court, but unconditional release.”

“The unconditional release of the accused could have real repercussions for the safety of the victims participating in the proceedings where their identity is known to the accused, particularly for those who had agreed to give evidence for the prosecution,” Mr. Walleyn argued.

The prosecution has, in its appeal, claimed that the order by trial judges for a stay of proceedings was erroneous and excessive. While disputing the grounds on which judges based their decision, the prosecutor also contends that trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings.

According to Paolina Massidda, Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC), the participation of victims in the interlocutory appeal lodged by prosecutors is appropriate because their interests are affected by the outcome of the proceedings on Mr. Lubanga’s release.

“An analysis of all the articles and rules governing victim participation in the proceedings before the court clearly shows that victims’ participation is not restricted to specific stages and is therefore possible at all stages in the proceedings, including interlocutory appeals,” said Ms. Massidda.

She added that victims’ participation in the prosecution’s interlocutory appeal “accords perfectly with the requirements of a fair trial, since their participation will allow the views of victims whose personal interests are undeniably affected by the outcome of the appeal in question to be taken into consideration in an objective and in-depth fashion.”

Trial judges on July 14, 2010 ordered for Mr. Lubanga’s release following a stay of proceedings a week earlier. However,  prosecutors have contested this order, and the former Congolese rebel leader will remain in detention until the appeals chamber decides on the application.

Luc Walleyn, who represents 24 victims, contends in a July 26, 2010 application that the victims consider that they have a personal interest in the proceedings, particularly because “what is at issue is not interim release under the supervision of the court, but unconditional release.”

Adds Mr. Walleyn: “The unconditional release of the accused could have real repercussions for the safety of the victims participating in the proceedings where their identity is known to the accused, particularly for those who had agreed to give evidence for the prosecution.”

Appeals judges have asked the prosecution to file a response to the legal representatives’ applications by August 6, 2010. Additionally, Judge Anita Usacka, on behalf of the presiding judge, on Wednesday this week asked two victims’ lawyers – Paul Kabongo Tshibangu and Carine Bapita Buyangandu – to clarify the legal basis for filing confidentially their applications to participate in the trial.

Some 103 victims are participating in the trial – the first to be conducted by the ICC. During both the prosecution and defense phases of the trial, victims’ lawyers attended the proceedings, including those held in camera. They also questioned some defense and prosecution witnesses. Moreover, three victims have also taken the witness stand.

An additional 15 applications by victims wishing to participate in the trial were filed in June. The majority of victims currently participating in the trial are former child soldiers.

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

It is expected that appeals judges will give an indication of when the appeal will start once the summer judicial break ends next week. Prosecutors have asked the appeals judges to allow in-court arguments “given the importance of the case and the complexity of the issues”.

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.

Trial judges on July 15, 2010 ordered Mr. Lubanga’s release following their decision a week earlier to impose an unconditional stay on the proceedings of the case. They stated that an accused could not be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings might resume.

On July 16, 2010, the prosecution filed an appeal against this decision and submitted an application for suspensive effect of the appeal.

In their ruling, the appeals judges stated that an immediate implementation of the order to release Mr. Lubanga could render the resumption of the trial uncertain, should the appeals chamber later find in favor of the prosecution’s appeal against the decision to stay proceedings.

“In these circumstances, his release could potentially defeat the purpose of the present appeal and that of the appeal against the decision to stay proceedings, and the granting of suspensive effect is therefore appropriate,” the judges wrote in their ruling.

The judges who are handling the prosecution’s appeal are Judges Sang-Hyun Song, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.

They stated that the factors that led the appeals chamber to grant suspensive effect of the appeal against the previous decision to release Mr. Lubanga remained equally valid in the present case. They said they had reached this conclusion despite the fact that this was the second stay of proceedings in the case, that trial judges had characterized the stay as unconditional, that Mr. Lubanga had been in ICC detention for more than four years, and that the prosecution had closed its case.

The appeals judges also stated that they were aware that Mr. Lubanga had undertaken to remain at the disposal of the court for the duration of the appeal and that he was subject to a travel ban and did not have travel documents.

“The Appeals Chamber notes that these are all factors to be taken into account, but concludes that they do not outweigh the potential impact on the proceedings, should the Appeals Chamber decline to grant suspensive effect,” they said.

In an appeal filed on July 16, 2010, ICC prosecutor Luis Moreno-Ocampo stated that Mr. Lubanga might flee if he were released. 

Mr. Lubanga – the alleged former head of the Union of Congolese Patriots (UPC) whose armed wing used child soldiers – has been in detention in The Hague since March 2006. His trial over the conscription, recruitment and use of child soldiers started in January last year. He is the first person to be tried by the ICC, the only permanent international court that tries perpetrators of genocide, crimes against humanity, and war crimes.

On July 15, 2010, Judge Akua Kuenyehia filed the request to be excused from sitting in this appeal and in all future appeals in Mr. Lubanga’s case, according to a statement from the presidency of the Court. This was due to her previous involvement in the pre-trial phase of the case, in the course of which she issued a warrant of arrest for Mr. Lubanga and confirmed the charges against him. 

The presidency of the Court granted her request on July 16. However, because the appeals chamber is supposed to be composed of all judges of the appeals division – that is, the president and four other judges – Judge Sanji Mmasenono Monageng, who is currently assigned to the Pre-Trial Division has been temporarily attached to the Appeals Division.

Accordingly, the judges who will hear the two appeals filed by the prosecution are Sang-Hyun Song, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng. The presiding judge shall be Judge Sang-Hyun Song.

Prosecutors have appealed orders by trial judges for a stay of proceedings and the release of Mr. Lubanga, who is charged with conscripting, recruiting, and using child soldiers during 2002 and 2003. Judges made the two orders after prosecutors failed to implement an order by judges to disclose the identity of a person who helped identify some of the witnesses who testified against Mr. Lubanga.

According to the judges, the failure by prosecutors to disclose the identity of this individual (known as ‘intermediary 143’) constituted an abuse of court process and rendered it impossible to assure a fair trial for the accused.

The defense had stated that it needed to know the identity of ‘intermediary 143’ for its questioning of another prosecution intermediary who has been implicated in bribing and coaching witnesses.

Mr. Lubanga – the alleged former head of the Union of Congolese Patriots (UPC) whose armed wing used child soldiers – has been in detention in The Hague since March 2006. It is not clear when the appeals chamber will start handling the two appeals. Until its ruling is handed down, Mr. Lubanga can not be released from ICC detention.