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ICC Appeals Chamber: Lubanga won't be released (… yet)

Yesterday the Appeals Chamber of the ICC delivered two judgments with regard to appeals of the prosecutor against decisions of the Trial Chamber in the case of Mr Lubanga Dyilo (we reported on this case earlier here, and here). The first judgment concerned an appeal against the Trial Chamber’s decision on the release of Thomas Lubanga of 2 July 2008. The Appeals Chamber decided to reverse the Trial Chamber’s decision on the ground that it was “not persuaded by the arguments of the Prosecutor that the Trial Chamber made a procedural error by rendering the Impugned Decision before the Appeals Chamber could decide on the appeal of the Prosecutor against the Decision to Stay the Proceedings”. Instead the Appeals Chamber underlined the importance of the decisions of the Trial Chamber and highlighted that they should not merely be interpreted as provisional decisions “that require the approval of the Appeals Chamber before they can be enforced.” Moreover, since the Trial Chamber had determined that in its view, no fair trial could be held in respect of Mr. Lubanga Dyilo, it was “indeed logical to determine immediately what the consequences of the Decision to Stay the Proceedings would be for the detention of Mr. Lubanga Dyilo.”

As far as the second ground of appeal was concerned, the alleged disproportionate and premature nature of the release of Lubanga, the Appeals Chamber held that the decision

was erroneous because the Trial Chamber, when ordering the unconditional release of Mr. Lubanga Dyilo, failed to take the conditional character of the stay it had imposed properly into account. This led the Trial Chamber to fail to consider all the options that were at its disposal and to assume erroneously that the unconditional release of Mr. Lubanga Dyilo was “inevitable”.

According to the Appeals Chamber, in the event of a permanent and irreversible stay of the proceedings, the accused person would have to be released because continued detention would not be in connection with the exercise of criminal jurisdiction by the Court. The situation is a different one when proceedings have been stayed conditionally, as in the case of Lubanga. Here it is helpful to quote parts of the decision in length:

A conditional stay is neither an acquittal nor a final termination of the proceedings, but may be lifted in appropriate circumstances (see above at paragraph 33). Therefore, the Court is not necessarily permanently barred from exercising jurisdiction in respect of the person concerned. The Trial Chamber expressly recognised this in stating that the stay it imposed was capable of being lifted in the future (see, for example, paragraphs 94 and 97 of the Decision to Stay the Proceedings). For that reason, once a Chamber has ordered a conditional stay of the proceedings, the unconditional release of the person concerned is not the inevitable consequence. Instead, the Chamber will have to consider all relevant circumstances and base its decision on release or detention on the criteria in articles 60 and 58 (1) of the Statute. In particular, the necessity of the continued detention (see article 58 (1) (b) of the Statute) will have to be assessed carefully. With specific reference to article 58 (1) (b) (i) of the Statute, the Chamber should take into account that the trial has been conditionally stayed, not permanently terminated. If the conditions for continued detention are not met, the Chamber will have to determine whether, in the particular circumstances of the case, release should be with or without conditions (see article 60 (2), third sentence, of the Statute). When deciding on detention or release (with or without conditions), the Chamber will have to consider, for example, whether further developments since the imposition of the conditional stay make it likely that the stay might be lifted in the not-too-distant future. At the same time, the Chamber must be vigilant that any continued detention would not be for an unreasonably long period of time, in breach of internationally recognised human rights (see article 9 (3) of the International Covenant on Civil and Political Rights of 16 December 19663, article 5 (3) of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 19504, and article 7 (5) of the American Convention on Human Rights of 22 November 19695; see also article 7 (1) (d) of the African Charter on Human and Peoples’ Rights of 27 June 19816, which generally provides for the right to a trial within a reasonable time).
If a Chamber concludes that the continued detention, or the release only with conditions, is justified, it will have to review such a decision at short intervals.

Therefore according to the Appeals Chamber the Trial Chamber failed to carefully assess all interests at stake and to give proper weight to all factors. It was thus incorrect of the Trial Chamber to solely focus on the fact that the proceedings had been stayed and to assume that following such a conditional stay, the unconditional release of the accused person was the “inevitable” consequence and “the only correct course” to take. This decision seems, at first, to be rather helpful for the prosecutor in the sense that he now will have more time at his disposal solving the underlying problem of the disclosure of exculpatory evidence. The Trial Chamber will have to come back with a new decision in which it decides whether or not Lubanga should be released (and if so, with or without conditions), taking a variety of different factual developments into account.

The second judgment of the Appeals Chamber concerned the prosecutor’s appeal to the Trial Chamber’s decision to suspend Lubanga’s trial a week before its scheduled start in June (here Judge Pikis issued a separate opinion, whereas in the previous judgment he had issued a dissenting opinion). The appeal was rejected based on the contention that

conditional stay of the proceedings may be the appropriate remedy where a fair trial cannot be held at the time that the stay is imposed, but where the unfairness to the accused person is of such a nature that a fair trial might become possible at a later stage because of a change in the situation that led to the stay.

By confirming the Trial Chamber’s decision on the stay of proceedings the prosecutor will have to keep working on a solution on how the (possibly) exculpatory evidence he has in his possession, could be disclosed (at least to the judges) in order to make a fair trial possible. Read together, the two judgments of the Appeals Chamber increase the pressure on the prosecutor who will have to work towards lifting the confidentiality agreements he entered into with the United Nations and other information providers, in order to get the trial against Lubanga going again. And although a release of Lubanga is unlikely to follow anytime soon, since the Trial Chamber will have to make a decision on the issue and take several factual conditions into account which it left out earlier, it nevertheless remains a possibility that should not be underestimated.


  1. […] The Lubanga Saga continues. He remains locked up while the ICC gives the Prosecutor more time to get their act together. This isn’t helping to give the Court any more legitimacy, I’m amazed the OTP created all this hassle. And more here and here. […]

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