A Rapid Commentary of the Appeals Chamber’s Decision in the Lubanga Case

Thomas Lubanga, left, and Judge Song, on the right. Photo ICC.

As promised last week, I am giving you a rapid commentary of the Appeals Chamber’s decision in the Lubanga Trial at the International Criminal Court. I was in the media center of the ICC when Judge Sang-Hyun Song read out a summary of the decisions (the full, authoritative written version of which you can find here and here), furiously taking notes to send to my employer. I am also sharing a slightly modified version of these with you below.

It was an interesting experience, listening to Judge Song reading the summary of the judgment, surrounded by journalists begging for Lubanga to be released in order to “have a story” – that is, be given a free field day to tear the ICC down in articles in order to sell more papers. Needless to say, they were disappointed by the time Judge Song finished reading the summary of the decision.

For clarity, I “quoted” parts of my notes to distinguish them from my commentary – I am not a professional stenotypist, and therefore had to paraphrase at time what the Judge said. I also might have made clear mistakes in my note-taking, although I’m pretty sure nothing major escaped me.

The Appeals Chamber’s decision is divided in two parts, each addressing the Prosecution’s two appeals, the first one regarding the 8 July 2010 decision of Trial Chamber I to stay the proceedings following the refusal of the Prosecutor to disclose the identity of Intermediary 143 to the Defence, and the second one concerning the 15 July 2010 Trial Chamber I Oral Decision to release Mr. Lubanga Dyilo.

Regarding the Prosecution’s Appeal of the Decision to stay the proceedings, the Appeals Chamber addressed each of the three arguments the Prosecutor raised:

The Prosecution claimed that the Trial Chamber had erred when it found that the Prosecution had refused to comply with the Chamber’s orders to disclose the identity of Intermediary 143, and that they were entitled to pursue other alternatives instead of complying strictly with the terms of the Orders.

The Appeals Chamber is not persuaded by this argument. Orders of the Chambers are binding, and should be treated as such by all participants, unless and until they are suspended by the AC, pursuant to article 82 §3 of the Statute, or their legal effects are otherwise modified by an appropriate judicial decision of the relevant Chamber.

It is undisputed that the Prosecutor refused to implement any of the orders regarding Intermediary 143. It is equally undisputed that the sole cause of this non-compliance was the Prosecutor’s willful decision not to follow the orders. Whatever the alternatives the Prosecution thought he could pursue, these could not suspend the Orders.

OK, so, a good reminder that in the Courtroom, the Judges’ decisions are binding. It’s a bit pathetic that the Appeals Chamber has to remind the OTP of such a basic rule of judicial proceedings.

On the second alleged error:

The Prosecutor argued that the Trial Chamber misconstrued the Prosecution’s position with the respect to his duties of protection, and found that as a result that the Prosecutor’s position constituted an unjustified intrusion in the role of the judiciary, and prevented the Chamber from being able to ensure a fair trial.

The Prosecutor held that the Statute does not focus the responsibility of protection on one particular organ, but all organs share responsibility. In his view, if a Chamber’s order entails tangible risks to a person, rather than complying with the order, the Prosecutor must engage with the Chamber and exhaust all available means to adjust or find variations to the Chambers’s orders.

The Appeals Chamber reaffirms that under the Statute, the Trial Chamber, subject only to the powers of the Appeals Chamber, is the ultimate guardian of a fair and expeditious trial. Whatever powers and duties the Prosecutor may have, they cannot supplant the ultimate responsibility of the Chamber to determine what constitutes a fair trial. If there is a conflict between what the Prosecution perceives to be his duties and the Chamber’s decision, the Chamber must prevail.

The Appeals Chamber finds that there is no exception to this general principle in matters of protection. To the contrary, whatever measures the Prosecution may take, it is the responsibility of the Trial Chamber to ensure that these measures shall not be prejudicial to or inconsistent with the rights of the accused, and a fair and impartial trial. It is the Chamber that is the ultimate arbiter on matters of protection.

The Appeals Chamber rejects the Prosecutor’s second alleged error.

It’s fairly self-explanatory: again, the Appeals Chamber would like to remind the Prosecutor that in a trial, Chambers is the boss. Not the Prosecution team.

Lastly, the third alleged error:

Prosecutor asserted that a stay of proceedings was a premature and excessive remedy. The Trial Chamber could have imposed sanctions to punish the Prosecution, and could have better explored other means to compensate Lubanga for any delay caused by the refusal of the Prosecutor to disclose the identity of Intermediary 143.

The Appeals Chamber recalls that a stay of proceedings is a drastic remedy, as previously upheld, a stay of proceedings might be justified when fair trial is impossible. The Appeals Chamber agrees with the Trial Chamber that no criminal court can operate on the basis that, whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it depending on his interpretation of his obligations. The Appeals Chamber observes that the Trial Chamber did not impose the stay of proceedings solely on the refusal to disclose identity of Intermediary 143, it relied also and as a necessary part of its decision the P’s refusal to implement Court’s order under an article 68 Order.

The Appeals Chamber can find no error in the Trial Chamber’s conclusion that the Prosecution’s rejection of the Trial Chamber’s authority extended to a very considerable part of the Trial and concerned issues related to the trial’s fundamental fairness. If a Trial Chamber loses control of such a significant and fundamental part of proceedings, because the Prosecutor refuses to apply its orders, impossible to obtain a fair trial and stay of proceedings justified.

This is the part where the tension in the media room (and, I’m guessing, in the packed public galleries) was at the highest. The Judge had just gone through all three errors, and sided with the Trial Chamber on all three counts. Were they going to release Lubanga? I was starting to worry. Around me, I could feel the journalists starting to hope that they had a good story at their hands.

But, there’s a “but”. Or, more precisely, a “however”:

However, The Appeals Chamber found that Trial Chamber erred in concluding that it had lost the control of proceedings in this case.

The Appeals Chamber notes that article 71 of the Statute enables the Chambers to impose sanctions in case of refusal of a Party to comply with its orders. The Appeals Chamber finds that one of the purposes of such a sanctions is to bring about compliance when a party refuses to comply with orders of the Chambers.

Sanctions are a key tool to maintain of proceedings within the trial framework, and to safeguard a fair trial without having recourse to drastic remedy stay of proceedings.

The Appeals Chamber found that to the extent possible, a Trial Chamber faced with a threat to fair trial, Trial Chamber should seek to bring about that parties’ compliance through the imposition of sanctions before resorting to a stay of proceedings.

In the present circumstances, Appeals Chamber finds that the Chamber erred in not giving a chance to sanctions. Accordingly, the decision to stay the proceedings must be reversed.

So, the Trial Chamber was fundamentally right, but should not have resorted to a stay of the proceedings right away. The Appeals Chamber’s core message: “give sanctions a chance!” I gave a sigh of relief.

By reversing the stay of the proceedings, it came to a logical end that the decision to release Mr. Lubanga was equally reversed:

Regarding the decision to release the Defendant, Mr. Lubanga, this decision predicated on the stay of proceedings contained in the first decision. Therefore, if the first decision is reversed, then so must the second.

The Appeals Chamber notes that the Defendant has argued that he should be detained any longer due to the inexcusable delay of the Prosecution. However the Trial Chamber did not make any finding that the Defendant was detained for an unreasonable period due to the inexcusable delay of the Prosecution under article 60§4 of the Statute.

And lastly, the conclusion:

For the reasons that were just summarized, the Appeals Chamber reverses both the decision to stay proceedings and the decision to release Mr. Lubanga.


Some concluding remarks:

This is at the same time a relief and a disappointment. It’s a relief because seeing Lubanga walk out this way would create irreparable damage to the victims, and that it would have been turned into a PR disaster for an already fragile Court after this summer’s events.

But it is also something of a disappointment, because as a lawyer, my first concern should be respecting the conditions of a fair trial, and not political considerations relating to how public opinion would react, and not even how the victims would feel.

Between an unfair trial and no trial, I choose unequivocally no trial. Prosecution’s behavior in this case, as previously analyzed by Kevin Jon Heller at Opinio Juris or Dov Jacobs at Spreading the Jam, has been unacceptable, and Appeals Chamber has just reminded Luis Moreno-Ocampo that in the Courtroom, the Judges run the show, not Prosecution. I think Trial Chamber I should consider sanctions when it comes back in session (normally, on Monday afternoon according to the ICC website).

I was half-amused and half-frustrated by the journalists surrounding me, who made no secret at the end of the judgment that they had been hoping for the decision to be upheld. It would have made such a good story! to paraphrase the exclamation of a journalist sitting behind me after the video feed had gone dead.

Dov Jacobs has posted his own as always pertinent and interesting analysis of the decision on his blog. I agree with all of his conclusions, and especially that this decision was in the end very predictable. I don’t think anyone would have put money on the table that Lubanga was going to walk out a free man this afternoon.

And so the Lubanga Trial goes on, and hopefully, will continue without further unnecessary delays.

UPDATE: Just came across Bec Hamilton’s summary of the decision, which is an interesting analysis of the decision, which parallels in many ways mine and Dov’s.


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  1. #1 by Mark Kersten on 12 October 2010 - 17:07

    Thanks for the commentary and analysis – another great post!

    Very interesting situation indeed and it brings up a fundamental tension, it seems to me at least, between differing conceptions of justice. It would be a grave injustice for many to allow Lubanga to walk and return to the DRC. This is particularly true for his victims, the survivors and their families. For others, it would be a grave injustice for Lubanga (or anyone for that matter) to be subject to an unfair trial. The decision to stay the proceedings and to release Lubanga highlighted the tension between a very legal sense of justice and another sense of justice, shared by victims, which is often presumed to be covered by law, but clearly is not always.

    I think you capture this when you write “as a lawyer, my first concern should be respecting the conditions of a fair trial, and not political considerations relating to how public opinion would react, and not even how the victims would feel…Between an unfair trial and no trial, I choose unequivocally no trial.” This suggests that law is above all other conceptions of justice, or perhaps – that law is the most salient representation of justice. That, in its own right, poses many fascinating questions. In general, however, a conception of justice which conflates morality with legal rule making (ie. legalism), I think, is something to be wary of. It may be, as the ICC and ICL in general develop that we will find ourselves more often than anticipated in situations that have no perfect or wholly good solution, legal or otherwise.

    • #2 by Xavier Rauscher on 12 October 2010 - 21:36

      The interpretation made of what constitutes Justice, as you point out, is not universal. But I think we can agree that the rule of law, and the dominant model of retributive Justice, is the least-worst system in most cases.

      There’s also the whole restorative Justice approach, which isn’t uninteresting, but I’m not yet convinced of its efficiency and deterrent effect. That being said, a lot could be discussed about the efficiency and the deterrent effect of retributive Justice, especially on the international level, but I don’t want to get into that tonight.

      FYI, yesterday was the first hearing in the Lubanga Trial since Friday. It resembled a Status Conference, and many issues were raised. I wanted to blog about it, but something might come up tomorrow, so I’ll wait until then to put up some updates…

      Just as a teaser, apparently not all disclosure issues have been solved. And Presiding Judge Fulford made it clear that it had to be settled ASAP. More on it tomorrow…

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