First Individual Charged at ICC Ordered to be Released

Thomas Lubanga trial

The International Criminal Court has ordered that the first man charged by the Court, Thomas Lubanga Dyilo, should be released without condition. This follows a decision last week to suspend his trial, the result of procedural irregularities – the prosecution refused to identify a key witness. Lubanga, a rebel leader of the Union of Congolese Patriots in the Ituri region of Congo, has been on trial for charges war crimes. Specifically, he is facing the charge of “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”. He pleaded not guilty to the charges, maintaining that he was a politician not a warlord.

However, it is unlikely that Lubanga will actually be released in the coming days. British Judge Adrian Fulford declared that “This order shall not be enforced until the five day time limit for an appeal has expired…If an appeal is filed within the five day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the Appeals Chamber has resolved whether this order granting release is to be suspended.” In other words, the prosecution has 5 days to decide whether or not it will appeal the decision to release Lubanga.

This is not the first time controversy has afflicted Lubanga’s trial. Indeed, ICC expert and legal scholar, William Schabas, has describes this order to release Lubagan “a bit of déjà vu all over again.” In July 2008, prior to the beginning of his trial, judges ruled that Lubanga’s right to a fair trial had been breached and ordered his release. In reaction to prosecution’s refusal to disclose key evidence, the judges declared that “a fair trial of the accused is impossible, and the entire justification for his detention has been removed.” Following the Prosecution’s decision to make all of its evidence to the Court available, Lubanga remained at the ICC and his trial began in January 2009. The controversy, however, led to the delay of Lubanga’s trial by seven months.

Another controversy struck his trial when its first witness testified against Lubanga that he had been conscripted by Lubanga as a child soldier and fought in his rebel group subsequently retracted his testimony.

It will be interesting to see what observers and scholars, both political and legal, will have to say about these new developments. My initial reaction is somewhat mixed. Firstly and optimistically, the decision illustrates the effective working of procedural law at the ICC. I am not familiar with Lubanga’s case so I am in no position to say whether or not he is guilty of war crimes or not. However, this decision flies against popular assertions by the Court’s detractors that it’s a Western, imperial Court meting victor’s justice. The decision to uphold important procedural law at the Court by its judges in the favour of the alleged war criminal severely weakens  claims of victor’s justice.


Of course, the ideal situation would be to have a full and fair trial

establish Lubanga’s guilt or innocence. While this outcome seems  more difficult to achieve now, it’s important to note that it remains a possibility. There is little doubt that the prosecution will appeal the decision to set Lubanga free and they may be able to ensure the continuation of the trial, as they did in 2008. While it seems unlikely, another option may be for the prosecution to issue an expanded list of charges against Lubanga. Several human rights groups have previously voiced concern regarding the narrow scope of the charges against Lubanga.

Many people would feel unease if Lubanga was released unconditionally. Indeed, this presents an interesting political-legal dilemma. The possible political implications of Lubanga’s unconditional release, particularly on the conflict in Congo, are in tension will the need to maintain rigorous procedural standards.

Should he be released, it could very well lead to a significant backlash against the Court and more specifically the Office of the Prosecutor. This is only intensified by the fact that Lubanga was the symbolic first individual charged by the Court and its first defendant. A release would no doubt provide potent fodder for the Court’s detractors. Lorraine Smith of the International Bar Association at The Hague described the decision to suspend Lubanga’s trial “a PR nightmare.” Legal scholar Kevin Heller, at Opinio Juris, reacted to the procedural errors by the prosecution by declaring that “I think it’s time to remove [ICC Prosecutor] Moreno-Ocampo.”

Lastly, and most importantly, Lubanga’s unconditional release could also put civilians, victims and witnesses in danger. This is especially so if he were to return to the Congo and re-engage in the conflict there. This is a point that should not be forgotten as the legal and institutional implications of the Court’s decision are debated. Indeed, the most troublesome aspect of developments in the Lubanga case is that they may endanger victims.

Indeed, a lot is at stake. Not just for law, either.


Originally posted at

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
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