The International Criminal Court (ICC) has ordered the release of former Congolese militia leader Thomas Lubanga on the grounds that he cannot get a fair trial. The prosecutors have been given five days to appeal his release. Lubanga is accused of using child soldiers in clashes involving his Union of Congolese Patriots militia during 2002 and 2003 in the Democratic Republic of Congo's Ituri District.
His trial was suspended last month after the court ruled that prosecutors inhibited his defense team by refusing to share documents that could help establish his innocence. The trial would have been the first at the ICC focusing solely on the use of child soldiers.
Lubanga supporters in Bunia, DR Congo, told VOA they hope Lubanga's release would focus world attention on what they called the real war criminals in the region.
Param-Preet Singh is counsel with the International Justice Program at the New York-based Human Rights Watch. She told VOA the Lubanga trial proves the ICC is a court of fair trial.
"I think it's clear that the trial chamber's decision to suspend the trial is a disappointment for the victims of Lubanga's alleged crimes because they've been deprived of an opportunity to have the crimes allegedly committed against them addressed by the court. But at the same time, this court is about fair trial; it's not just about prosecution, and indeed it would have been a bigger injustice to move forward with what would have an unjust trial," she said.
Singh said it is wrong for Lubanga supporters to think that the court's order to free him is proof that he did not commit any war crimes.
"I don't think that's accurate because the court has indeed said that the underlying grounds for the arrest warrant are still valid. So there's still reasonable ground to believe that Thomas Lubanga committed the crimes alleged against him. The recent decision is because of a procedural problem in the disclosure of key evidence," Singh said.
She explained the reason behind the court's decision that a fair trial for Mr. Lubanga would not be possible.
"There's a provision in the Rome Statute of the court that basically allows the prosecution to collect evidence confidentially from certain sources. But because it has been collected confidentially, the only way that they can disclose that information to the court or the defense is if they have permission from the United Nations or other providers to do so. The problem is in this case they don't have permission from the United Nations," she said.
Supporters of Mr. Lubanga in Bunia, DR Congo, told VOA they were happy with the court's decision to order his release. They said the charge that Lubanga recruited children to fight is untrue. On the contrary, Lubanga supporters said the children in question were orphans who sought protection from Lubanga.
Singh said whether orphans or not, it is never a good thing to recruit children to fight in conflicts.
"Ultimately it's up to the court to decide whether or not that is indeed true. But at the end of the day children under the age of 15 cannot be used to participate actively in hostilities regardless of whether or not they were recruited or enlisted or whatever," she said.
She said there are both positive and negative implications from the Lubanga trial.
"Certainly the impact on ethnic tensions and perceptions in Ituri that's something that cannot be discounted. And that's something that we raised with the International Criminal Court that it is really important to explain what's going on in The Hague to affected communities in Ituri to really convey that this is not an acquittal for Lubanga. He is not being declared innocent by the court but rather it's a technicality," Singh said.
Singh said Human Rights Watch has collected information that suggests that Lubanga may be guilty of certain crimes, including child recruitment. She said her organization also collected information that suggests that people higher up in the chain of command for Lubanga's rebel movement should also be prosecuted.
She said the Lubanga trial sends a powerful message about the role of the ICC in its attempt to prosecute war criminals.
"I think the message this case sends ultimately is a positive message, which is this court is not a court about prosecution at any cause. It's a court a of fair trial, and the judges of the court would make sure that that principle is strictly adhered to in proceedings before it," Singh said.