ICC won’t release DRC suspect

An appeals panel of the International Criminal Court refused on Tuesday to free a Congolese warlord, but also rejected an appeal to restart his suspended trial.

In yet another setback for prosecutors in the landmark case, the appellate judges agreed with a lower court that the suspect, Thomas Lubanga, was not getting a fair trial because the prosecution was withholding crucial evidence it had obtained from the United Nations on condition it remain confidential.

But in an apparently contradictory decision, the judges accepted the prosecution’s appeal against releasing Lubanga immediately.

Lubanga is accused of using child soldiers in a brutal conflict in the eastern Democratic Republic of Congo from 2002 to 2003. His is the first case to come before the court, which came into existence in 2002 as the world’s first permanent war crimes tribunal.

”The trial chamber is directed to decide anew whether [Lubanga] should remain in detention or whether he should be released with or without conditions,” presiding judge Sang-hyun Song said, reading a summary of the ruling by the five judges.

While the appeals chamber refused to order Lubanga’s release, it also rejected an appeal by prosecutors against the trial chamber’s decision to suspend Lubanga’s trial a week before its scheduled start in June.

If the trial had started, ”there would always have been a lurking doubt as to whether the undisclosed material would have potentially changed anything for the outcome of the trial,” Song said.

Prosecutors have come under scathing criticism from the lower court judges and from Lubanga’s defence attorneys for using secret information without disclosing it.

The dispute centered on a confidentiality agreement between prosecutors and the United Nations and other non-government groups who provided evidence to investigators on condition that not even judges be allowed to see it.

Some of the undisclosed evidence may have helped Lubanga defend himself. Under the rules, prosecutors are obliged to gather evidence that could clear suspects as well as evidence tying them to crimes.

Since the appeal, circumstances changed. Just last week, prosecutors said the UN had changed course and agreed to give judges ”unfettered access” to the documents, a move that could clear the way for Lubanga’s trial to start.

The trial chamber is now expected to also decide on whether the case can go ahead when it rules on Lubanga’s continued detention.

”I think the most important thing is to be aware that proceedings are continuing before the trial chamber,” Geraldine Mattioli of Human Rights Watch said.

Mattioli said halting the trial ”was the appropriate remedy back in June, but there have been a lot of developments since then.” – Sapa-AP

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