Lubanga Released — In Theory

by Kevin Jon Heller

As I anticipated a few days ago following the UN’s refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga Dyilo’s unconditional and immediate release:

30. As just set out, the Chamber’s Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.

The Trial Chamber’s decision, however, does not mean that Lubanga will walk out of the Hague anytime soon. First, despite releasing him “unconditionally” and “immediately,” the Court stayed his actual release pending appeal of its order by the Prosecutor:

35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.

The Prosecutor will no doubt ask the Appeals Chamber to suspend the release order, which means that Lubanga will remain in detention until the Chamber resolves the appeal, however long that takes.

Second — and I doubt this aspect of the order will receive much media attention — the Trial Chamber indicated that Lubanga will be released only if a State is willing to take him:

36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.

That requirement could be a serious problem for Lubanga. I predicted in my forthcoming article “What Happens to the Acquitted?” that ICC acquittees will find it no less difficult to find new homes than ICTR acquittees like Ntagerura and Rwamakuba, and I am confident — sadly — that Lubanga’s “release” will prove me right. There is no way the DRC will take him; he is, after all, a rebel. And it is very unlikely that any other State will be enthusiastic about having an accused war criminal walking free on its territory. So I fear that Lubanga may end up sharing the same fate as Ntagerura and Rwamakuba: being “free” to enjoy living as a virtual prisoner in a UN safehouse.

2 Responses

  1. It was indeed a natural consequence of the decision to stay the proceedings. Although I do agree with you that he is unlikely to be released any time soon, pending the Appeal’s decision on the suspensive effect of the appeal (another example of procedural overkill at the ICC: Let’s have an appeal on the suspensive effect of the appeal for suspensive effect of the appeal…).

    On the specific point of countries willing to take Lubanga, if I recall correctly, Lubanga was in jail awaiting trial for charges of genocide and crimes against humanity in the DRC. Why not send him back there for trial? or even provide the DRC with the file on the recruitment of child soldiers to try for that in national courts.

    There will of course be obvious issues of fairness of the proceedings, but at least, he’ll be tried in our lifetime…

  2. PS: along the same lines, I would presume that Oric, who was just acquitted by the ICTY Appeal’s chamber, will not have the same difficulties in finding a place to stay…

    Any insight on that decision? I was never a big fan of the “balanced prosecution” approach to prosecutorial policy, but this decision can’t be very helpful for serbian public opinion…

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