The prosecutor had appealed the two decisions of the First Instance Chamber, rendered in June and July, ordering the stay of the proceedings and the release of Lubanga.
With these two decisions, the opening of the trial of the former leader of the Union of Patriotic Congolese (UPC), a militia from eastern DRC, was de facto cancelled.
A hard blow for the ICC, which has not, to date and since its opening in 2002, had one trial. The prosecutor had immediately appealed the decision.
Accused of war crimes for enrolment and conscription of children of less than 15 years of age and to have made them take part in the hostilities, Lubanga could not, in the present state of the case, benefit from a fair trial, according to the first instance judges.
Judges Adrian Fulford, Elizabeth Odio Benito and Rene Blattmann considered that the prosecutor had misused the procedure of confidentiality.
The rules allow indeed for the prosecutor to offer guarantees of confidentiality to those who provide information within the framework of the investigations. But this procedure especially aims at making it possible to the prosecutor to take note of the facts, which must then be corroborated by other evidence or testimonies, and then transmitted to the judges and the defence.
During its investigation in the DRC, opened in July 2004, the United Nations Mission in Congo (MOCUC), as well as several governmental organizations, had benefited from such guarantees and are opposed to any transmission of evidence to the defence as well as to the judges of the Chamber.
In the appeal decision, the judges, thus, estimated that the prosecutor "prevented the Chamber from carrying out an evaluation of the evidence obtained", which some could be favourable to the defendant.
The judges specified that "if the Chamber had decided to open the trial, there would have been constant doubt" on the nature of this evidence which "could have had an influence on the outcome of the trial".
However, the judges did not confirm the decision of the release. They considered that "the Court is not in the permanent impossibility to prosecute the concerned person".
Since June, the prosecutor has tried to obtain from the United Nations and organizations for the defence of human rights an agreement allowing to lift the confidentiality on the evidence to be able to transmit it to the judges and the defence.
The Appeal Chamber, thus, transferred the ball back to the side of the first instance judges, requesting them to examine the case again, taking into consideration new elements provided by the prosecutor during the last months.
Arrested in Kinshasa in 2004, Lubanga has been held for the last four years in preventive detention.
© Hirondelle News Agency