By Daniel M. Austin
Impunity Watch Reporter, Africa

THE HAGUE, Netherlands-The International Criminal Court (ICC) ruled that Mr. Thomas Lubanga, the rebel warlord from the Democratic Republic of the Congo (DRC), will remain in custody after his trial was suspended for prosecutorial misconduct. The decision delivered October 8, by the ICC’s Appeals Chamber’s President Sang-Hyun Song, overturned a lower court’s ruling that called for ending Mr. Lubanga’s trial and releasing him.  Mr. Lubanga is on trial for war crimes, which included enlisting child soldiers under the age of 15 to fight for his militia.

This is the first case tried under the ICC’s specially designated war crimes court. However, the trial has been wrought with problems since beginning in January 2009 including issues with witness testimony as well as charges of prosecutorial misconduct. The conduct of the chief prosecutor, Luis Moreno-Ocampo, was the foundation for the recent Appeal Chamber’s ruling.

Thomas Lubanga stands accused of leading the Union of Congolese Patriots (UCP) – a rebel group that has fought for control of the resource-rich Ituri region, which is located in eastern DRC. The fighting, which occurred between September 2002 and August 2003, transformed a land dispute into an ethnic war between members of the Hema and Lendu tribes. It is estimated that as many as 50,000 people were killed during this war and several hundred thousand more were left homeless.

Mr. Lubanga’s trial was suspended on July 8, 2010 because of accusations the prosecutor had disobeyed court orders and did not follow court procedures. In particular, Mr. Moreno – Ocampor did not release the name of an investigator who worked for the prosecution as an intermediary tasked with finding witnesses for the trial. This individual has been identified as “intermediary 143”. The prosecution insisted that if the intermediary’s name was released before adequate safety protection was in place, he could be harmed.  The prosecution has subsequently released the name of the intermediary.

The Appeals Chamber found the actions of the prosecution intrusive to the powers of the judiciary but did not find the conduct so severe that the trial could not continue. Furthermore, the Appeals Chamber ruled that the trial court should have used more appropriate measures to deal with this prosecutorial misconduct.  In their ruling, the trial court should have given the prosecution time to comply with their court order before suspending the proceedings.

For more information, please see:

Al-Jazeera — DR Congo warlord’s trial to restart — 8 October 2010.

All Africa   — The Appeals Chamber Reversed the Decisions to Stay Proceedings and to Release Thomas Lubanga Dyilo — 8 October 2010.

BBC Africa — Thomas Lubanga: ICC trial of DR Congo warlord to resume — 8 October 2010.

Reuters Africa – War crimes court to rule on warlord’s release — 8 October 2010.