The International Criminal Court in the Hague will continue the trial of Congolese warlord Thomas Lubanga Dyilo, easing earlier concerns that he be released due to allegations of an unfair trial. The appeal chamber on Friday upheld a demand by the prosecution to proceed with the case.

“The appeal chamber reverses both the decision to stay proceedings and the decision to release Mr. Lubanga Dyilo,” said ICC appeals’chamber judge Sang-Hyun Song, who is also president of the Court.

Lubanga, wearing a traditional white robe with a red cap, was quiet yet restless throughout the short hearing.

The case of Lubanga, the first person to go on trial at the ICC , has been riddled with problems even before it started. It commenced in January 2009 after years of delay over problems with evidence.

As the trial proceeded, Lubanga’s defence team claimed that intermediaries of the prosecution intermediaries bribed and coached witnesses to provide false testimony. Judges then ordered the prosecutors to call two intermediaries to testify and to disclose the name of a middleman known as “intermediary 143’’.

ICC chief prosecutor Luis Moreno Ocampo refused, saying it could put the intermediary’s safety at risk.
In July Adrian Fulford, one of the trial’s presiding judges, ruled that the prosecutors’ “unequivocal refusal to implement repeated orders” to disclose the intermediary's identity to the defence, made it “necessary to stay these proceedings as an abuse of the process of the court.”

The prosecution appealed the judges’ ruling to the appeal’s chamber, which handed out its verdict favouring the prosecution on Friday.

In his verdict, Sang-Hyun Song pointed out that the presiding judges of the Lubanga case should have imposed sanctions on the prosecutors instead of ordering the "drastic remedy" of stopping the trial.

"Sanctions are a key tool for Chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having to have recourse to the drastic remedy of staying proceedings," Judge Song said.

The prosecutors welcomed the verdict, pointing out in a statement that "victims can rest assured that his trial will be continued, and that his criminal responsibility will be decided by the judges at the conclusion of a fair trial."

Lubanga's defence team declined to give comments on the decision.

Human Rights Watch praised the ICC, not just for its latest decision but also for showing that it is taking the rights of all parties into consideration. "This gives victims the opportunity to see justice done," said Geraldine Mattioli of the HRW office in Brussels. "On the other hand, the Court has shown that its judges are taking great care to make sure that Lubanga's rights as a defendant are respected," she added.

Child soldiers

Thomas Lubanga Dyilo, 49, was charged with war crimes for using children under the age of 15 to fight for his militia during the 1997-2002 civil war in the Democratic Republic of Congo. Prosecutors allege that his militia abducted children as young as 11 from their homes, schools and football fields and took them to military training camps where they were beaten and drugged. The girls among them were used as sex slaves.

The flamboyant Lubanga led the Union of Congolese Patriots (UPC), an ethnic Hema militia which was one of six groups that fought for control of the gold-rich Ituri region from 1999 until 2003. During that time he was also believed to have made money from trade ranging from gold and diamonds to weapons.

The land struggle turned into an inter-ethnic war in which an estimated 50,000 people were killed and hundreds of thousands were left homeless.

Lubanga was finally captured in Kinshasa in early 2005, and was transferred to the Hague in March 2006. Lubanga’s pre-trial proceedings, which started that same month, was already plagued with problems relating to witnesses.

The trial finally opened in January 2009 after a delay following a ruling that the prosecution had wrongly withheld evidence potentially favourable to his defence. The first witness at the trial retracted his testimony after first saying he had been recruited by Lubanga's fighters on his way home from school.