Lubanga trial resumes

This afternoon, Hague time, the ICC Appeals Chamber issued its decision on the prosecution’s appeal against the Trial Chamber’s July 8 decision to stay the Lubanga trial (for the second time) and to order former Congolese warlord Thomas Lubanga Dyilo to be released (also for the second time).

The Appeals Chamber reversed both the Trial Chamber’s decision to stay the proceedings and their decision to release Lubanga. Thus if you are looking at actual results, it seems like a victory for the prosecution (and a victory for the victims participating in the proceedings who had supported the Prosecution’s call for the Appeals Chamber to reserve the Trial Chamber and allow the case to continue.)

But if you listened to the Appeals Chamber’s oral summary – read by Judge Song – – you got a very different message. The Appeals Chamber stated in no uncertain terms that it backed the Trial Chamber’s position that any order issued by the court must be obeyed by the prosecutor, full stop. It rejected all of the prosecution’s arguments, bar one. In short, the only reason the trial is resuming is because the Appeals Chamber accepted the prosecution argument that the Trial Chamber erred by resorting immediately to a stay of proceedings rather than first seeing whether it could bring the prosecution into compliance through sanctioning of the prosecutor. To the extent that one can view this first ICC trial as a power struggle between different divisions of the new court as precedents are being established, the clear message given in the oral summary was that it is the judges who are in control and that they will continue to reject any attempt by the prosecutor to modify this basic rule.

A brief background and summary follows based on the oral decision, but the written decision, when it comes out, is the final word:

The Trial Chamber ordered the stay of proceedings because of the prosecutor’s “material non-compliance” with the court’s order for the prosecution to disclose, confidentially to the defence, the identity of an intermediary and because in this context the Trial Chamber had “lost control of a significant aspect of the trial proceedings.” Then, as a consequence of the stay, the Trial Chamber ordered Lubanga’s release – with suspensive effect.

On appeal, the prosecution raised three arguments. Firstly, it argued that the Trial Chamber mis-characterized the prosecution’s actions by finding the prosecution refused to implement its order and that the prosecution had merely pursued reasonable legal channels to ensure that the intermediary in question would be safe as a priority before agreeing to implement the court’s order. The Appeals Chamber rejected this argument, essentially saying that a court order is a court order and its implementation is not subject to the prosecutor’s discretion.

Secondly, the prosecution argued that the Trial Chamber had misconstrued the prosecution’s position with respect to its protection obligations. The prosecution argued that the Rome State “establishes a system to provide protection to persons at risk due to their interaction with the Court, in which all organs share responsibility and must consult and act in a coordinated fashion to provide adequate protection” and that the prosecution, in seeking time to consult with other organs regarding the security of the intermediary was acting within that system, not intruding into the chamber’s domain. This argument was also rejected by the Appeals Chamber, with Judge Song stating that it is the Trial Chamber, subject only to a different decision by the Appeals Chamber, that is the “ultimate guardian of a fair and expeditious trial.”

Thirdly, the prosecution argued that the Trial Chamber’s decision to stay the proceedings was “excessive and premature.” It was this argument alone that the Appeals Chamber looked favorably upon, although only just. The error that the Appeals Chamber found with the Trial Chamber’s decision was that there was an avenue they could have first pursued before staying the proceedings. In Song’s words: “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.” So the prosecution won its argument, but only with the Appeals Chamber signaling very clearly that the prosecutor should be sanctioned until he comes into line with the Trial Chamber’s order regarding the intermediary.

With the stay lifted, it followed that the order for Lubanga’s release was also reversed. So now proceedings will resume in the Trial Chamber, and we will wait to see what sanctions may be imposed.