The two witnesses called by Thomas Lubanga’s defense this week gave their evidence in closed session, thereby providing no indication of their identities or of the issues they testified about.
Before taking a two week break to allow the defense to conduct research in the Democratic Republic of Congo (DRC), the court heard a request by Lubanga’s lawyers to be permitted to exchange information with the defense team for German Katanga, another former Congolese leader on trial at the International Criminal Court (ICC).
On Monday, when the first defence witnesses for the week was due to appear, the start of hearing was delayed by an hour and a half, due to what Judge Adrian Fulford said were “difficulties” which the defense team had experienced earlier in the day.
The judge referred to these difficulties when the hearing finally kicked off. “We fully understand the difficulties that you had earlier today. Thank you for promptly contacting the court, and congratulations notwithstanding the difficulties of enabling us to save at least something from the afternoon,” he said. He did not elaborate what the difficulties were.
After taking the oath in public session, this witness went on to give the rest of her evidence in closed session. The second witness also only gave the oath in public, then went on to give all his testimony in closed session.
This week’s witnesses brought the total of defense witnesses to have testified with protective measures such as voice and face distortion to three.
The very first witness, who claimed he was the father of a prosecution witness who he said lied to court about having been a child soldier, also testified with protective measures, although defense lawyers said he had earlier promised that he would testify without them.
The second and third defense witnesses testified in full public view and also gave their names. But most of their testimony was given in closed session.
Lubanga is accused of the war crimes of enlisting, conscripting and using child soldiers in armed conflict in the Democratic Republic of Congo during 2002 and 2003. His defense case opened on January 27, 2010. The prosecution started their case on January 26, 2009, and closed it on July 14 last year.
Meanwhile on Tuesday, the trial today an early adjournment after the defense noted that there were errors in the English transcript of the testimony of the fourth defense witness.
Catherine Mabille, the lead defense attorney, asked for the adjournment, and Judge Fulford granted it about two hours before the time court was scheduled to end the day’s proceedings.
Mabille pointed out that in the French transcript there were two names mentioned by the witness, whereas in the English transcript there was only one name. She said since she intended to question the witness again about that name in her redirect examination, the disconnect between the transcripts would present a problem.
On February 17, the Lubanga defense asked judges to grant them permission to exchange information with lawyers for Germain Katanga, another former Congolese leader on trial at the ICC.
Defense lawyer Jean-Marie Biju-Duval told judges that there were four witnesses common to the two trials and it is about these witnesses that the defense teams wanted to meet and to share information.
Prosecutor Nicole Samson said prosecutors in both the Katanga and the Lubanga case opposed the proposed meetings and sharing of information by the defense teams.
Katanga is jointly charged with Mathieu Ngudjolo Chui, also a Congolese national, with three crimes against humanity and seven war crimes. The ICC alleges that the two men led militia groups which used child soldiers and committed atrocities against members of the Hema ethnic group in DRC.
The Union of Congolese Patriots (UPC), which Lubanga is alleged to have led, was predominantly made up of Hema and fought against the groups which the ICC claims were led by Katanga and Ngudjolo.
“The defense has to share information about these witnesses… It is our right and we need to do so,” Biju-Duval said. “We think it is useful and necessary for the defense teams to the share results of their investigations. There’s nothing against that. This will only help in the establishment of the truth.”
Samson said prosecutors did not see how it could be possible to exchange information without violating the orders restricting who got access to information concerning the individual cases.
“The information is known to the defense teams and it is possible that in the course of their exchanges, the information that is otherwise protected in one case is revealed, not intentionally, is revealed in the other case,” she said.
Judge Fulford said barring defense teams from speaking to each other would be a denial of their rights to free speech and association, and would also represent an impediment to the preparation of their cases.
But Samson said that while each defense team was aware of the orders imposed on them by the courts regarding disclosure of information, there would be no means of monitoring the communication which would take place between the defense teams. She added that it was not the case that every item of evidence in a document compiled by OTP was of equal relevance across the two cases.
Judges said they would make a ruling after getting submissions on the specific restrictions which had been placed on the disclosure of information by the two trials.
Meanwhile, the trial on Thursday took a break to allow his attorneys to travel to DRC to conduct what Judge Fulford referred to as “critical research”. As a result, there will be no hearings until Wednesday March 3, 2010.
Judge Fulford directed the defense team and representatives of the Victims and Witnesses Unit (VWU) to meet and resolve an outstanding issue which he said related to the research which the defense wished to carry out during their visit to the DRC next week.