ICC Appeals Chamber Rejects Lubanga Stay, Trial to Resume

The Appeals Chamber of the International Criminal Court (ICC) in The Hague, yesterday announced its decision in the case of Thomas Lubanga Dyilo.  Lubanga’s case had been stayed and he was ordered released by the trial chamber because the prosecutor claimed that it could not follow a court order to reveal the identity of a prosecution intermediary who is alleged to have bribed witness.  The prosecution claimed that it had other obligation which prevented it from revealing the identity of that intermediary despite repeated orders to do so. The appeals chamber is available here.

The appeals chamber, while not adopting the remedy of the trial chamber found the prosecution’s actions violated court orders:

It is undisputed that the Prosecutor did not fulfil the terms of the First Order of Disclosure within that order’s specified time-limit. It is equally undisputed that the Prosecutor did not fulfil the terms of the Second Order of Disclosure within its time limit. The Prosecutor failed to comply with both orders and remained in noncompliance at the time of the Impugned Decision. The Prosecutor does not contend that his non-compliance was caused by any external factor. He was aware of the
orders and voluntarily chose to pursue other actions which he considered to be justified rather than to comply with the orders. The Prosecutor’s non-compliance was deliberate. The Appeals Chamber finds that such wilful non-compliance constituted a clear refusal to implement the orders of the Chamber. To characterise such wilful noncompliance
as anything other than refusal, as the Prosecutor does in his Document in Support of the Appeal, is, at best, disingenuous. At worst, it is an expression of what the Trial Chamber correctly described as “a more profound and enduring concern”,
namely that the Prosecutor may decide whether or not to implement the Trial Chamber’s orders depending on his interpretation of his obligations under the Statute.

The Appeals Chamber concluded that the whatever duties the prosecutor may have, he has an obligation to follow the orders of the trial chamber unless and until they are overturned on appeal.  The Appeals Chamber specifically found that the Office of the Prosecutor is not a co-equal branch of the court but in fact is subject to the orders of the court:

[The Appeals Chamber] finds that the Trial Chamber did not err when it found
that the Prosecutor refused to comply with the First and Second Orders of Disclosure.
The Appeals Chamber also finds that, irrespective of whatever duties the Prosecutor
may have, he is obliged to comply with the orders of the Trial Chamber.

The Appeals Chamber, though agreeing with the problem, determined that the Trial Chamber had not actually lost control over the proceedings and the stay was thus unnecessary. The Appeals Chamber determined that sanctions under Rule 71 will be sufficient for the Trial Chamber to regain control of the prosecutor.  The decision of course implicates the other trial currently before the court, that of Matthieu Ngdolo Chui and Germain Katanga, where the same intermediary’s actions are at issue.

Lubanga is the first person to face trial at the ICC.  He is charged with recruiting and using child soldiers while leader of the Union of Congolese Patriots in the Democratic Republic of Congo. Lubanga was brought to the court in 2o06, his trial commenced in January 2009, the defense case began in January 2010.  There have been many disruptions of the case.  The Open Society blog covering the trial published a timeline of the trial, and also covered the decision of the Appeals Chamber.  The New York Times report on this decision is available here.