Thomas Lubanga’s lawyers today told court that they would like to question a former prosecution witness about certain elements of his testimony, but prosecutors are opposed to the move. Mr. Lubanga faces the war crimes of conscripting, enlisting and using child soldiers in armed conflict in the Democratic Republic of Congo (DRC) during 2002 and 2003.
Defense attorney Marc Desalliers said today that it would be important for the defense to continue to explore certain areas which were closed when ‘Witness 298’ testified “for understandable reasons because the witness was presented as living under very vulnerable conditions”.
Mr. Desalliers said: “The answer he gave with respect to his mother was a bit ambivalent. We would like that the material which has been presented so far should be reviewed…”
In opposing the defense application, prosecuting attorney Manoj Sachdeva argued that judges had in the past granted the right of parties that are not calling witnesses to interview the other parties’ witnesses, but this should be in advance of their testimonies. He argued further that there was no legal basis for the defense to now go back to ‘Witness 298’ at this stage.
Mr. Sachdeva added that prosecutors did not know what the defense wanted to get from interviewing the witness afresh. “They may be issues that could have been put to the witness in cross-examination at the time he testified. And secondly, as the chamber is aware, there are certain areas in relation to this witness which should be treated with extreme caution and I raise the issue in respect to the witness’s mother and in fact as the chamber is aware, questions on that regard were stopped at a particular time during the cross-examination for those very reasons – humanitarian reasons.”
It was not possible to know what ‘Witness 298’ said in his testimony, or who his mother was. The application by the defense to call this witness followed the testimony via video link by a Congolese woman who, according to the defense, was due to testify on Tuesday that although her son who testified as a prosecution witness told court that his mother was dead, she was, in fact, the mother to that witness. The Congolese woman gave all her testimony in closed session.
Presiding judge Adrian Fulford said there needed to be finality on this matter “because otherwise you could have a witness giving evidence and you could endlessly go back to him and her and try to improve on the questions which you put and the answers you received during the course of the evidence.”
He asked the defense to set out in writing the subject they wished to raise with the witness along with an explanation as to why it had become necessary to go back to ‘Witness 298’ for a further interview. The defense said they were satisfied with the judge’s counsel.
Meanwhile, the defense today opposed an application by International Criminal Court (ICC) prosecutors to hold a fresh interview with an upcoming defense witness.
Defense attorney Jean-Marie Biju-Duval said the Office of The Prosecutor (OTP) had already interviewed this witness who was referred to as ‘Witness 297’ for 16 and a half hours, so it was not necessary for prosecutors to conduct another lengthy questioning of this witness.
“Questioning the witness again a few days prior to his evidence, if that were to happen, would tantamount to witness proofing and that is something that the chamber has already prohibited,” said Mr. Biju-Duval.
He added, however, that the defense was agreeable to the idea of prosecutors having a short meeting at The Hague with the witness before he gives his testimony as has happened with some previous defense witnesses. Mr. Biju-Duval said the defense were not ready to travel to Kinshasa, the capital of the DRC, to attend the meeting which prosecutors were requesting with ‘Witness 297’.