The case against accused Congolese militia leader Thomas Lubanga appears to be strong so far, say legal observers, despite attempts by the defense to undermine key testimonies.
Because the testimony has been provided by traumatized former child soldiers and some of the recorded statements were given three years ago, the inconsistencies can be explained, experts say.
Such discrepancies, therefore, pose a small, but almost expected obstacle for prosecutors.
Dr. Susan Breau, a professor of International Law at the University of Surrey (UK), told IWPR that inconsistencies in the testimony of key witnesses often does little to damage the prosecution’s case.
The prosecution’s first witness, for example, a former child soldier from the Ituri region of the Democratic Republic of Congo, admitted that he had lied in his testimony, and that he had been coached by an aid group on what to say.
This led Lubanga’s defense team to grill other witnesses about details in their testimony in attempt to undermine the validity of the often powerful statements by the former child soldiers.
The defense has had some success at this.
In recent weeks, defense lawyer Jean-Marie Biju-Duval cross-examined a witness who claimed to have been a child soldier in Lubanga’s Union of Congolese Patriots.
Biju-Duval revealed inconsistencies between the story the witness told investigators in 2005 and the story he told to the International Criminal Court.
The witness explained this by saying he was afraid to give information to “the white man,” who had been asking him questions in 2005.
Lorraine Smith, an experienced prosecutor and program manager with the International Bar Association in The Hague, has followed the Lubanga trial closely.
Inconsistencies in testimony are common in criminal trials, she said, because memories change over time, especially since original statements were given to investigators years ago.
Still, Smith said, the prosecution needs to prove those inconsistencies are reasonable. The conflicting details could be explained by a witness who can discuss the trauma suffered by former child soldiers, resulting in memory gaps.
The defense is doing its job by pointing out the problems in the testimony, she noted. “The whole purpose of cross-examination is to reveal inconsistencies.”
Breau agrees with Smith about the inconsistencies. Before becoming a professor at the University of Surrey, she practiced criminal law in Canada.
“It’s surprising how much similarity a case like this bares to a domestic, criminal case that might take place in a small town in Canada,” she says, “The one big difference is the lack of a jury.”
The ICC trial is conducted by a three-judge panel, which will make a ruling, rather than a jury.
The judges in the Lubanga case will not only examine the legal aspects of the evidence submitted to the court, but also the “veracity,” or truthfulness of the witnesses, according to Breau.
“This,” she said, “will be evaluated in large part by their appearance, the looks on their faces.”
Other factors that differ from most domestic criminal trials are the ages and trauma experienced by key witnesses.
“You’re dealing with children,” explained David Crane, a former prosecutor for the Special Court to Sierra Leone. “And, they are being forced to re-live their experiences both as victims and as perpetrators.”
Crane said his team sought assistance to calm the fears of his child-witnesses, and also made arrangements so that some of them could testify on camera instead of in the courtroom.
Responding to this concern, the ICC has made efforts to ensure the comfort and sense of security for younger witnesses.
At the beginning of the trial, the witnesses sat in clear view of Lubanga, and were able to make eye contact with him.
This changed after the first witness withdrew his initial testimony. Known to the court as Dieumerci, the young man was allowed to tell his story to the court while he was shielded from Lubanga’s direct view.
Now, all former child soldiers are shielded in this way, with curtains pulled across the side of the witness box
Faced with similar testimonial inconsistencies, Crane insured that the testimony he presented was as strong as possible.
“When investigating our case, we went to areas of Sierra Leone where we knew the worst atrocities were committed, and focused on evidence coming from there,” he said.
“We also made sure we showed how other factors-like rape-could be used to manipulate people, used as a tool for terror,” he said.
Similarly, at the Lubanga trial, opening statements by prosecutor Luis Moreno Ocampo and the lawyer for victims, Hervé Diakese, focused on the rape and sexual-slavery that girl-soldiers were forced to endure, even though rape is not among the charges against Lubanga.
Additionally, Judge Elizabeth Odio Benito has repeatedly questioned witnesses on these subjects following their examinations by court lawyers.
After focusing on testimony of former child soldiers, the prosecution has shifted to experts who discuss historical aspects of the war in Ituri, and the origins of Lubanga’s militia.
Crane said it is important to place the key witnesses – the child soldiers – in the broader context of what was going on.
While the course of the prosecution’s case against Lubanga is taking shape, the outcome is far from certain, however, Breau noted.
“I’ve seen a lot of criminal trials, and been very surprised by their outcomes,” she said.
Meribeth Deen is a Canadian journalist based in London who has been covering the Lubanga trial for the Open Society Institute and IWPR.