Court says Lubanga’s trial must resume

The International Criminal Court ruled on Friday that the trial of an alleged Congolese warlord should resume after a three-month suspension, but reprimanded the prosecutor for defying court orders.

An appeals court overturned a lower court decision last July to halt the trial and release the defendant, Thomas Lubanga, because of the prosecutor’s behaviour.

The presiding judge, Sang-hyun Song of South Korea, agreed with the trial judges that prosecutor Luis Moreno Ocampo was out of line when he refused to disclose to defence attorneys the identify of a key figure in the case.

Song said the lower court was too hasty in calling an end to the trial, and said the judges should have first sanctioned Moreno Ocampo to force him to comply with their instructions.

Moreno Ocampo had argued that his first duty was to protect the anonymity of the person, who was an intermediary used by investigators to work with witnesses and who could be at risk if his identity were disclosed.

Song said sanctions are a tool for judges “to maintain control of proceedings … and to safeguard a fair trial” without the drastic step of suspending the trial.

The decision clears the way for the resumption of Lubanga’s trial, although no date was set. He is charged with recruiting and deploying child soldiers in a brutal conflict in eastern Democratic Republic of Congo in 2002-2003. He denies the allegations and insists he was a politician and peacemaker, not a warlord.

Lubanga (49) dressed in an embroidered light blue robe and orange hat, showed little emotion as Song read out the ruling.

Prosecutors welcomed the decision, without addressing the court’s criticisms.

“Victims can rest assured that his trial will be continued, and that [Lubanga’s] criminal responsibility will be decided by the judges at the conclusion of a fair trial,” the prosecution said in a written statement.

Although the ruling was a victory for the prosecution, Moreno Ocampo slumped in his chair, chin in hand, as he listened to the judge’s lengthy rebuke of him for flouting court orders.

Song said no court can function if the prosecutor can pick and choose which instructions from judges he obeys. He rejected Moreno Ocampo’s argument that prosecutors’ obligations to protect witnesses take precedence.

“Whatever powers and duties the prosecutor may have cannot supplant the ultimate authority of the trial chamber to determine what constitutes a fair trial,” he said.

Adrian Fulford, the presiding trial judge, wrote in July that Moreno Ocampo “revealed that he does not consider that he is bound to comply with judicial decisions that relate to a fundamental aspect of trial proceedings”.

In a stinging written order, Fulford added that Moreno Ocampo’s actions amounted to “a profound, unacceptable and unjustified intrusion into the role of the judiciary”.

Lubanga’s trial has been troubled almost from its start in January 2009. Prosecutors tussled with judges over the admissibility of evidence gathered in confidence from UN personnel and non-government volunteers in the battlefield, who believed disclosure of their identities could jeopardize their lives or work.

The trial of Lubanga, who was arrested in 2006, is the first case brought before the International Criminal Court, which began work four years earlier as the world’s first permanent war crimes tribunal.

So far, it has launched cases dealing only with African conflicts. Its highest profile indictment is against Sudanese President Omar al-Bashir, who is charged with genocide in the Darfur conflict. Al-Bashir has vowed never to surrender to the court, and the court lacks its own police force to arrest suspects. – Sapa-AP

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