Lubanga case: Chamber’s orders are binding, but stay of proceedings was premature

Three months ago the Trial Chamber in the Lubanga case had ordered the stay of the proceedings because of the Prosecution refusal to comply with the Chamber’s orders.

Recently the Appeals Chamber delivered its judgement on this issue.

Chamber’s Orders are Binding

The Appeals Chamber endorsed the statement of 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 emphasized that orders of the Chambers are binding and should be treated as such by all parties and participants unless and until they are suspended, reversed or amended by the Appeals Chamber or their legal effects are otherwise modified by an appropriate decision of a relevant Chamber.

The Chamber also noted that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair.

Stay of the Proceedings Lifted

At the same time, the Appeals Chamber lifted the stay of proceedings in this case.

The Chamber emphasized that a stay of proceedings is an exceptional remedy.

The Chamber found that, to the extent possible, a Trial Chamber faced with a deliberate refusal of a party to comply with its orders which threatens the fairness of the trial, should seek to bring about that party’s compliance through the imposition of sanctions under Article 71 and Rule 171 before resorting to imposition of a stay of proceedings.

In particular, pursuant to Rule 171 of the ICC Rules, if an official of the Court or a defence counsel refuses to comply with direction by the Court, the Presiding Judge of the Chamber may order the interdiction of that person from exercising his or her functions before the Court for a period not exceeding 30 days.

In the view of the Appeals Chamber, before ordering the stay of proceedings, the Trial Chamber should have imposed sanctions and given such sanctions a reasonable time to bring about their intended effects.

Lubanga, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”, Case No. ICC-01/04-01/06 (OA 18), App. Ch., 8 October 2010

The Appeals Chamber has also reversed the Trial Chamber’s decision to release the accused, as that decision was predicated on the decision to stay proceedings.

Lubanga, Judgment on the Appeal of Prosecutor against the Oral Decision of Trial Chamber I of 15 July 2010 to Release Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (OA 17), App. Ch., 8 October 2010.

See also previous post: “The ICC Prosecutor refused to comply with the Chamber's order”