The Appeals Chamber of the International Criminal Court has ruled on the appeals of two Trial Chamber decisions in the Lubanga case from June and July: http://www.icc-cpi.int/press/pressreleases/433.html. It is another big setback for the Prosecutor.
Basically, the Chamber has confirmed that the Trial Chamber was right to order a stay of proceedings. But they have given the Prosecutor a small additional window of time to fix the situation. Because the Trial Chamber did not issue a permanent stay of proceedings, the Appeals Chamber said that it was not correct to order the release of the accused. But it said that this would be inevitable once the stay is made permanent. And the Appeals Chamber also signalled issues about the right to a trial within a reasonable delay, a point that becomes increasingly relevant.
Now, presumably, the Lubanga defense will apply for the stay to be made permanent. The Prosecutor has been trying to fix things, but so far he has not been successful. In late August, the Trial Chamber rejected his efforts. Perhaps he can do better. Time will tell, I suppose, but he doesn’t have much time left.
The whole business is a disaster for the Court, in its first case. At the same time, sending the message that the Court will only proceed when the rights of the defense have been scrupulously observed is perhaps not so bad.
Anyone following this issue should be aware that all disputed documents have now been submitted to the Trial Chamber under conditions acceptable to that Chamber (it has copies of all evidence which will also be available for the Appeal Chamber). The Trial Chamber has ordered an expedited response from the defence. See http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1480-ENG.pdf
This was why the prosecutor withdrew as moot his appeal on the first two issues challenging the stay of the proceedings. see
We will know soon whether or not the prosecutor's foolish promises of confidentiality in relation to exculpatory evidence will result in a permanent stay.
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