International Justice Monitor

A project of the Open Society Justice Initiative

Lubanga's Defense Opening Statement – Witnesses Lied, Lubanga is Not Guilty

NOTE FROM EDITOR: Below is an unofficial transcript of the opening statement of Thomas Lubanga Dyilo’s defense team today, presented by his lead counsel, Catherine Mabille. It seems clear the defense is going to take two tracks in the coming months: (1) challenge the truthfulness and integrity of prosecution witnesses, arguing that many of them were not in fact child soldiers; and (2) argue that Mr. Lubanga was not part of a common plan to recruit children to be part of the armed militia wing of his political party (arguing that the militia was in fact controlled by others), but instead Mr. Lubanga did everything he could to try to demobilize child soldiers.

“First of all, the defense intend to prove to the chamber that many of the prosecution’s witnesses came before the court and testified knowing that they would be giving inaccurate information to the court. The defense also intend to show that some of this false testimony was fabricated with the assistance of intermediaries who collaborated with the Office of The Prosecutor.

With leave I will remind you that this trial begun a year ago and the statements made by the first witness were as follows: “The statements that I made before did not come of my own free will; they are statements from another person. I was taught these statements for three and a half years. I don’t like this. I would like to tell my version as I swore I would before everyone”.

In response to the extremely specific question from the presiding judge, and I will remind you of this question, I quote, “This morning you told the court that you had gone home after school and some soldiers from UPC abducted you and your friends. This story that you have told us, is it true or false?” The witness answered: “It is false”.

Even though this witness recanted, this initial statement by the first witness confirmed the investigations done by defense regarding the possibility that certain prosecution witnesses had been manipulated so that they would give false testimony. And I would even go so far as to say that the hearings in which we heard from prosecution witnesses and also thanks to the investigations done by the defense, this assumption has been confirmed even more.

Today the defence intend to provide the chamber with results of our inquiries. In particular we intend to demonstrate that all the individuals who were presented as child soldiers as well as their parents in some cases deliberately lied before this court. The defense intend to show that six of them were never child soldiers, the seventh lied about his age and the conditions in which he enrolled, and the eighth never belonged to the UPC.

Furthermore, the defense intends to show that the witnesses were encouraged to lie on a number of very specific points, in particular their name, the name of their parents, the schools that they said that they had attended, and this was done so that it would be more difficult to verify the information relating to them. They were encouraged to lie about their age and the fact that the allegedly belonged to an armed group so as to qualify for the charges against Mr Lubanga. The fact that their parents were dead when in actual fact apparently they are still alive. The fact that they were subjected to cruel treatment and that they were abducted, and this was done to make their accounts more dramatic.

They were also asked to claim that they could not read and that they did not remember specific details so as to make any possible verifications or comparisons extremely sensitive and extremely difficult to carry out. In our view the situation is of the most grave concern, the defense intend to begin its case by hearing from witnesses who will show that this false testimony was indeed fabricated. In particular, the defense will call the parents and friends of these so-called child soldiers, representatives of various schools as well as people who themselves took part at a particular point in this process of fabricating false testimony.

And for the defense I would say that the demonstration of this fraudulent process of preparing false testimony affects not just the evidence relating to child soldiers but also this demonstration will lead us to ask significant questions about the credibility of all the testimony that has been heard before this court.

Of course the defense are aware that they themselves could have been manipulated. It would appear that some witnesses may have come and given us false information for all kinds of reasons. The defense have endeavoured with the means at their disposal to collaborate the various sources of information. We have endeavoured to verify all the extrinsic and objective aspects of the testimony. We have done systematic verifications by visiting the schools where the alleged child soldiers said they had been educated. Our evidence will be subject to judicial scrutiny and the defense hopes in so far as possible that the scrutiny will be done in public.

After hearing the 16 initial witnesses, the defense intends to ask the chamber to draw the relevant legal conclusions of the situation, and they can be summed up as follows:

There can be no true justice if the very substance of the judicial process  [… ] if it is gangrenous in its most fundamental aspects. How can one ensure a fair trial when such a significant part of the trial is based on fabricated evidence? How can judges carry out their roles, that is to say seeking out and establishing the truth, if the testimony that they have heard are the result of concerted efforts to deceive them? Is this not a fundamental attack on the integrity of the judicial system?

Did the prosecution fail to carry out their duty to provide proper control and oversight over its intermediaries? And in particular did the prosecutor fulfil his statutory obligation to investigate   exculpatory evidence particularly from his own witnesses? Was the prosecutor not reckless by creating a situation whereby giving testimony before the court would mean receiving substantial material advantages? What are we to think of a judicial process in which a witness giving false testimony receives assurances that his identity will not be revealed to the public right from the very beginning of his cooperation with the prosecution?

At the appropriate time after hearing the first 16 witnesses the defence shall examine the possibility of bringing these serious matters before the chamber and will strive to determine whether the proceedings should continue. Are these proceedings in keeping with the fundamental objectives of criminal justice or are they not?

If the judicial process continues, the defense intends to indicate that we will not endeavour to show that there were no minors amongst the ranks of the FPLC. But the realities of that time must not be distorted outrageously as they were by the prosecution at the very outset when the prosecution made its opening remarks. One of the objectives of our defense will be to examine the causes and circumstances of the situation in a precise manner. We shall hear from the defense witnesses and thus it will be possible to review the various aspects of these matters and take stock of this phenomenon. The defence witnesses shall also shed light on these issues for the chamber particularly the role and the place of Thomas Lubanga with regard to the presence of minors amongst the soldiers of his organisation.

At this stage the defense will endeavour to answer two fundamental questions: First, Did Thomas Lubanga initiate the recruitment of minors into the UPC forces? Did he help recruit minors in one way or another? The defense witnesses will tender evidence to the effect that Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.

And our second question is as follows: what was the attitude that Thomas Lubanga took to the presence of minor children amongst the UPC troops? The defense witnesses shall provide evidence to the effect that Thomas Lubanga during the few months where he did have responsibilities did all he could to demobilize the minors who were present amongst the ranks of the FPLC. The witnesses shall also speak of the difficulties in implementing this policy of demobilization.

These are, your honours, the major thrusts of the defense of Thomas Lubanga.”