AUGUST 13, 2010: Prosecutor Supports Victims' Participation in Lubanga Appeal

Prosecutor Supports Victims' Participation in Lubanga Appeal

SOURCE: Labunga Trial Website (The Hague)

By Wairagala Wakabi


Congo-Kinshasa- International Criminal Court prosecutor Luis Moreno-Ocampo has supported an application by victims participating in the Thomas Lubanga war crimes trial to take part in the appeal against his release.

In an August 6, 2010 filing, the prosecutor asked appeals judges to grant all four applications by victims' lawyers to participate in the appeal proceedings, including any oral hearings that may be held.

Mr. Moreno-Ocampo suggested that victims' lawyers should file their views and concerns in writing, and then prosecutors and the defense would respond to them. Moreover, the prosecutor proposed that victims' lawyers should file one consolidated document containing their joint submissions for each of the appeal proceedings.

The prosecution has filed two appeals: one against an order to stay the proceedings and another against the order for Mr. Lubanga's release. Trial judges on July 14, 2010 ordered that Mr. Lubanga should be freed subsequent to the imposition of a stay of proceedings a week earlier. Following the prosecution's appeals, the former Congolese rebel leader will remain in detention until the appeals chamber makes a ruling.

Mr. Lubanga's attorneys have told appeals judges that they do not intend to respond to the applications for victims to participate in the appeal proceedings. The judges are yet to make a ruling on the matter. Equally, the date for the start of the appeal proceedings is yet to be announced.

Mr. Moreno-Ocampo said in his filing that "the prosecution considers that the issues in this appeal plainly affect the personal interests of the victims. The decision to stay the proceedings has brought this case to a halt, directly impacting on the victims' ability to present their interests." Besides, the appeals chamber had previously ruled that the personal interests of victims were affected by issues arising out of an appeal regarding the release of the accused, he said.

Victims participating in Mr. Lubanga's trial have been allowed to question defense and prosecution witnesses whose testimonies they felt directly affected their interests. Three of the 103 victims taking part in the trial also gave testimony in court.

However, Mr. Lubanga's defense has been critical of the role victims have played in the trial, charging that they have attempted to be prosecutors too, often taking witnesses through the same questioning routine already covered by prosecutors. This, according to the defense, has subjected these witnesses to needless repeat questioning and in the process, added to the length of the trial. Mr. Lubanga has been in ICC detention since March 2006. His trial started in January last year.

Prosecutors at the ICC allege that Mr. Lubanga was the leader of the Union of Congolese Patriots (UPC) and of the Patriotic Forces for the Liberation of Congo, which used child soldiers in inter-ethnic fighting in the Congo 's Ituri Province . Prosecutors also charge that during 2002 and 2003, the UPC used hundreds of young children - some as young as 11 years - to kill, pillage, and rape.

Victims' lawyers contend that all articles and rules governing victim participation in the proceedings before the court indicate that this participation is possible at all stages, including interlocutory appeals. In a July 26, 2010 application, Luc Walleyn, who represents 24 victims, contended that the victims considered that they had a personal interest in the proceedings, particularly because "what is at issue is not interim release under the supervision of the court, but unconditional release."

"The unconditional release of the accused could have real repercussions for the safety of the victims participating in the proceedings where their identity is known to the accused, particularly for those who had agreed to give evidence for the prosecution," Mr. Walleyn argued.

The prosecution has, in its appeal, claimed that the order by trial judges for a stay of proceedings was erroneous and excessive. While disputing the grounds on which judges based their decision, the prosecutor also contends that trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings.

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