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July 23, 2010

Appeal filed against Order to release Thomas Lubanga Dyilo

By Cecile Jeffries

On 15 July 2010 Trial Chamber I of the International Criminal Court (ICC) ordered the release of Mr Lubanga, who currently stands accused of enlisting and conscripting children under 15 years into the Patriotic Forces for the Liberation of Congo (FPLC) and forcing them to participate in the armed conflict which took place in Ituri, Democratic Republic of Congo, between September 2002 and August 2003.

This order for his release was the result of Prosecution’s repeated failure to disclose the identity of a certain intermediary as ordered by the Court, and its subsequent order for an unconditional stay of proceedings. The order for release was deemed necessary as an accused cannot be held in preventative custody merely on the basis that proceedings may recommence at some uncertain point in the future.

Accordingly, on 16 July 2010 Prosecution filed its appeal against release, together with a request that his release be suspended pending resolution of the appeal. Prosecution maintained that release prior to appeal could defeat the very purpose of the appeal as well as appeals against other related decisions, such as the decision to stay proceedings (appeal against which was granted on 15 July 2010) and would have dire consequences for the proceedings generally. The most pressing concern was the unlikelihood of the Court being able to ensure Mr Lubanga’s appearance at court once set free. The Appeals Chamber granted suspensive effect to the appeal on 23 July. Thus Mr Lubanga will stay in detention until a decision on the appeal is rendered.

A decision on the appeal is now awaited.

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