The International Criminal Court has ordered the resumption of the war crimes trial of Congolese militia leader Thomas Lubanga, stalled since July, and reversed an order to free him.
“The decision to stay proceedings must be reversed,” judge Sang-Hyun Song, president of the court’s appeals chamber, said in The Hague on Friday.
Lubanga, 49, went on trial in 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.
The ICC suspended his trial on July 8 after criticising chief prosecutor Luis Moreno-Ocampo for abusing court processes and ignoring judges’ orders.
Ocampo had been ordered to disclose to Lubanga’s defence team the name of an “intermediary” used by prosecution investigators to find witnesses, which he refused to do, citing security concerns.
On July 15, the court ordered that Lubanga be freed as his detention was “no longer fair” given the suspension of the trial.
The execution of this ruling was delayed pending the outcome of the prosecutor’s appeal against both decisions.
While the prosecutor’s behaviour was wrong, said Song, the trial chamber’s decision to stay the proceedings was “drastic”.
“The trial chamber erred by resorting immediately to a stay of proceedings without first imposing sanctions and allowing such sanctions an opportunity to bring about the prosecution’s compliance with its order.”
Since the decision to release Lubanga was predicated on an incorrect decision, “so too the decision to release Mr Lubanga Dyilo must be reversed”, said the judge.
The office of the prosecutor welcomed the decision in a statement.
“Victims can rest assured that this trial wil be continued and that his (Lubanga’s) criminal responsibility will be decided by the judges at the conclusion of a fair trial.”
Lubanga, who surrendered to the ICC in March 2006, has pleaded not guilty. His defence team accuses prosecutors of using false witnesses.
Lubanga’s trial, the ICC’s first, was initially to have started in June 2008 but was stalled when the court ruled that prosecutors had wrongly withheld evidence that was potentially favourable to his defence.
The prosecution alleges militia under his control abducted children as young as 11 from their homes, schools and football fields and took them to military training camps, where they were beaten and drugged. The girls among them were used as sex slaves.
The child soldiers were allegedly deployed in combat between September 2002 and August 2003.
Lubanga is accused of having sought to maintain and expand his control over the Congo’s eastern Ituri region, one of the world’s most lucrative gold-mining areas, where rights groups say inter-ethnic fighting has claimed 60,000 lives over the last decade.
While partly upholding the prosecution’s appeal, the court remained critical of Moreno-Ocampo’s behaviour.
“Whatever powers and duties the prosecutor may have, they cannot supplant the ultimate authority of the trial chamber to determine what constitutes a fair trial”.
A hearing will be held on Monday to determine a trial resumption date.