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DRC/Lubanga: Appeals Chamber Granted Suspensive Effect to theAppeal Against the Decision on the Release of Thomas Lubanga Dyilo.

23 July 2010

Dear All,

Please find below the latest press release issued by the International Criminal Court (ICC) announcing that the ICC Appeals Chamber granted suspensive effect to the appeal against the decision on the release of Thomas Lubanga Dyilo. The Appeals Chamber argued that an immediate implementation of the order to release Thomas Lubanga could render the resumption of the trial impossible. The accused will remain in custody of the ICC pending the final decision on the appeal.

This message includes an ICC press release and related filings (I), as well as related news articles (II).

Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Best regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. ICC PRESS RELEASE AND DECISION

[These documents have been produced by the ICC. The CICC Secretariat distributes them as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The documents do not reflect the views of the CICC as a whole or its individual members.]

i. "The Appeals Chamber gives suspensive effect to the appeal against the decision on the release of Thomas Lubanga," ICC Press release, ICC-CPI-20100723-PR564, 23 July 2010, http://www.icc-cpi.int/NR/exeres/100143A4-12B2-473C-A228-50509C2CE9D3.htm

"Today, the Appeals Chamber of the International Criminal Court (ICC) granted the suspensive effect to the Prosecution's appeal against Trial Chamber I oral decision to release Thomas Lubanga Dyilo, dated 15 July, 2010. Therefore the accused will remain under custody of the ICC pending the final decision on the appeal.

Trial Chamber I had ordered the release of the accused following its decision, dated 8 July, 2010, imposing an unconditional stay on the proceedings of the case The Prosecutor v. Thomas Lubanga Dyilo. According to Trial Chamber I, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected. Prosecution filed an appeal against this oral decision and submitted an urgent application for suspensive effect of the appeal on 16 July, 2010.

Appeals Chamber found that an immediate implementation of the order to release Mr Lubanga Dyilo could render the resumption of the trial impossible, should the Appeals Chamber later find in favour of the Prosecutor's appeals against the decision to stay proceedings and the oral decision to release the accused. In these circumstances, his release could potentially defeat the purpose of these appeals. The Appeals Chamber therefore suspended the implementation of the release of Mr Lubanga Dyilo pending the determination of this appeal.

Thomas Lubanga Dyilo is accused of having committed, as co-perpetrator, war crimes of enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libération du Congo (Patriotic Forces for the Liberation of Congo), 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.

The situation was referred to the Court by the Government of the Democratic Republic of the Congo (DRC) in April 2004. The Prosecutor v. Thomas Lubanga Dyilo is one of the cases that arose from the situation in the Democratic Republic of the Congo; others are The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui and The Prosecutor v. Bosco Ntaganda. Bosco Ntaganda remains at large. Investigations are ongoing in the DRC..."

ii. "Decision on the Prosecutor's request to give suspensive effect to the appeal against Trial Chamber I's oral decision to release Mr Thomas Lubanga Dyilo," ICC Appeals Chamber, ICC-01/04-01/06-2536, 23 July 2010, http://www.icc-cpi.int/Menus/Go?id=d1bdc455-d2b6-49d6-9e3e-cddd3dc3a22d&lan=en-GB

II. NEWS ARTICLES

i. "Appeals Judge Excuses Herself from Lubanga Case", Wairagala Wakabi (Lubanga Trial website), 23 July 2010, http://www.lubangatrial.org/2010/07/23/appeals-judge-excuses-herself-from-lubanga-case/

"One of the appeals chamber judges had excused herself from the panel of judges that will hear a prosecution appeal for the lifting of the stay of proceedings in the war crimes case against former Congolese leader Thomas Lubanga.

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." (...)

ii. "Court suspends Lubanga release," Al-Jazeera, 23 July 2010,
http://english.aljazeera.net/news/africa/2010/07/2010723185546568782.html

"Thomas Lubanga, a former Congolese rebel leader, will remain in jail in The Hague after the appeals panel of the International Criminal Court (ICC) said it feared he might not reappear if another trial is ordered.

Judges at the ICC ordered Lubanga's trial halted on July 8, saying that Luis Moreno-Ocampo, the court's chief prosecutor, had not complied with an order to turn over certain information to his defence.

The court later ordered his release on the grounds he could not be held in custody if it were unclear when or if his trial would ever resume. The prosecutors had appealled against that decision.

.... Lubanga is accused of enlisting and conscripting children aged under 15 for his Union of Congolese Patroits, to kill members of a rival tribe in the 1998-2003 war in the Democratic Republic of Congo...."

iii. "ICC suspends release of DR Congo's Lubanga," BBC News, 23 July 2010
http://www.bbc.co.uk/news/world-africa-10746248

"The International Criminal Court has suspended the release of the accused in its first case, Thomas Lubanga from the Democratic Republic of Congo.

Prosecutors have appealed against the court's decision to release him after his trial was suspended last week.

Mr Lubanga has pleaded not guilty to charges of recruiting child soldiers in eastern Congo in 2002-03.

He will remain in custody until judges rule on his appeal, the court said.

Mr Lubanga's trial was suspended two weeks ago after judges cited procedural irregularities.

The judges ruled that it was 'no longer fair' to keep Mr Lubanga in detention...."

iv. "Court delays Congolese militiaman's release," AFP, 23 July 2010
http://www.google.com/hostednews/afp/article/ALeqM5jRSlsJd_6zZGNl82I4ckhfH8ktqw

"Congolese militia chief Thomas Lubanga will remain in custody until judges rule on an appeal by prosecutors against a decision to free him, the International Criminal Court (ICC) said Friday.

'Today, the appeals chamber of the ICC granted the suspensive effect to the prosecution's appeal' against a July 15 decision to free Lubanga following the suspension of his trial, said a court statement.

'Therefore the accused will remain under custody of the ICC pending the final decision on the appeal.'

The judges found that 'immediate implementation' of the order to free Lubanga, could render a post-appeal resumption of the trial 'impossible'.
Lubanga, 49, has been on trial since January 2009 accused of using children under the age of 15 to fight for his militia during the five-year civil war in the Democratic Republic of Congo, which ended in 2003...."

v. "Court suspends release of Congo's Lubanga," Reuters Africa, 23 July 2010
http://af.reuters.com/article/topNews/idAFJOE66M0OX20100723

"The appeals panel of the International Criminal Court suspended on Friday the release of accused Congo militia leader Thomas Lubanga, saying that freeing him could prevent his trial from resuming.

Trial judges at The Hague-based ICC ordered Lubanga's trial halted on July 8, saying prosecutors had not complied with an order to turn over certain information to his defence.

The court later ordered his release on the grounds he could not be held in custody if it were unclear when or if his trial would ever resume. Prosecutors appealed against that decision.

On Friday, the appeals judges granted their motion for a stay pending a decision from appeals judges...."

vi. "Int'l court says Congo warlord must stay in jail," AP, 23 July 2010
http://www.google.com/hostednews/ap/article/ALeqM5hEHBZ-JfCxUm5NY_dGnY0ctHn1vgD9H4SE682

"Judges at the International Criminal Court say a Congolese warlord must stay in custody until they rule on an appeal by prosecutors of an order to release him.

Thomas Lubanga was ordered freed after his trial, the court's first, was halted July 8 over the prosecution's refusal to identify a person known in court papers only as 'intermediary 143.'

Prosecutors appealed the decision to halt the trial and release Lubanga, who has pleaded not guilty to charges of using child soldiers in a brutal conflict in the eastern Congo region of Ituri in 2002-2003...."

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