Thomas Lubanga’s defense team will call about 30 witnesses once presentation of the defense case begins at the International Criminal Court (ICC) mid this month.
In a departure from what appeared like standard procedure by the prosecution as far as protecting the identity of witnesses was concerned, the defence has so far requested such measures for a minority of their witnesses.
“The defence team, led by Catherine Mabille, will over several months present exculpatory evidence in its possession. In support of its theses, the Defense will call around 30 witnesses,” a January 5, 2009 press release from the ICC said. It added: “To date, the majority of witnesses have not requested any protective measures from the Court.”
The defence team has been critical of the frequent closed sessions and the extensive protective measures for the greater number of the prosecution witnesses. The defense argued that while they appreciated the need to protect witnesses who could be endangered if their identities were revealed, the measures also gave cover to witnesses who were deliberately intent on telling court lies.
For instance, in an interview with the Lubanga Trial website last August, Mabille: “…My idea is that we have to be very careful, [because] you can protect weak people, but not people who want to lie.”
Lubanga is accused of the war crimes of enlisting and conscripting children under the age of 15 years into the armed wing of the Union of Congolese Patriots (UPC) – the Patriotic Forces for the Liberation of Congo (FPLC) – and using them to participate actively in armed conflict between September 2002 and August 2003.
Lubanga’s defense team is expected to dwell on discrediting testimony by prosecution witnesses that Lubanga was the overall in-charge of the political and military affairs of UPC, and that he took part in conscripting and using children under the age of 15 years in inter-ethnic fighting. The age of some of the witnesses who were presented as former child soldiers is also likely to be contested, as are the circumstances under which they became members of the UPC militia.
The defense has been uncomfortable with aspects of the roles which participating victims have so far played in the trial, pointing out that whereas the victims should mainly be involved in the reparations phase, they were instead tending to play a prosecutorial function. Accordingly, the defence has argued that participating victims should not have an unfettered right to examine defence witnesses.
It is not clear whether participating victims will question the defense witnesses. The January 5 statement from the ICC made no mention of this, only informing that defense witnesses would be examined by the defense and cross-examined by the prosecution.
To date, 103 victims represented by three teams of legal counsel have been authorised to participate in the trial. The ICC statement said the victims “have the right to express their position on matters heard before the Chamber and subject to the judge’s authorisation, they may examine witnesses on specific issues.”
The Prosecution finished presenting its evidence on July 14, 2009. Over the course of 22 weeks and during 74 days of hearings, the Chamber heard 28 witnesses called by the Office of the Prosecutor (OTP), including three experts. The Chamber called two additional experts to testify. The witnesses under protective measures were 25.