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Former Suspect Agrees to Interview With Lubanga Prosecutors

Prosecutors in the war crimes trial of Thomas Lubanga are set to interview a former suspect in the war crimes investigations by the Office of The Prosecutor (OTP) at the International Criminal Court (ICC).

Judge Adrian Fulford on Tuesday gave prosecutors the greenlight to interview the suspect, who goes by the name of ‘Witness 3’. Prosecutors first interviewed ‘Witness 3’ in 2005 as a suspect. At that time, the OTP was still conducting investigations that subsequently led to an application for Mr. Lubanga’s arrest.

The judge said that although prosecutors could interview the witness in The Hague next week in the absence of Mr. Lubanga’s lawyers, a transcript of the interview should be availed to both the defense and the chamber.

According to the judge, ‘Witness 3’ was originally a suspect in the prosecution’s investigations. Prosecutors subsequently attempted to make him their witness but he objected to any audio or video recording. He agreed to a written statement.

“Having refused to cooperate with the prosecution, and since he provided information of potential use to the accused, the court ordered that the prosecution reveals the relevant materials to the accused since he is one of the witnesses whose identity it was possible to disclose to the defense,” said Judge Fulford.

The Judge said prosecutors would question ‘Witness 3’ about intermediaries of the ICC’s prosecution investigators whom he met. Although the exact nature of the questioning is not known, several defense witnesses have testified that intermediaries coached prosecution witnesses and forged evidence implicating Mr. Lubanga.

Mr. Lubanga, whose trial started in January last year, stands accused of conscripting, enlisting, and using child soldiers in inter-ethnic fighting in the Democratic Republic of Congo (DRC) during 2002 and 2003 when he allegedly headed the Union of Congolese Patriots (UPC). He has denied the charges.

Although ‘Witness 3’ had earlier declined further meetings with prosecutors, last February he agreed to the interview but requested that representative of the court’s registry, and possibly someone from Mr. Lubanga’s defense, should be present during the interview.

Prosecutors this week informed judges that they intended to conduct the interview on May 17, 2010 in The Hague. Prosecutors applied for the interview to take place in the absence of defense representatives, arguing that their preparatory investigations for cross-examination of witnesses are usually held in private and that nothing related to this witness justifies a departure from that approach.

However, Mr. Lubanga’s lead attorney, Catherine Mabille, told judges that the defense wanted to be present during the interview.

“The chamber is concerned that the questions that it is intended should be put to ‘Witness 3’ concerning intermediaries may involve ‘Witness 3’ revealing identities which the defense are not entitled to, and who may require protection,” observed Judge Fulford. “However, in light of the present evidence which the court is hearing concerning intermediaries, it is critical that the defense receives early and comprehensive disclosure.”

Judges therefore ruled that the prosecution may interview the witness in the absence of the defense but in the presence of a representative of the registry and anyone else the Victims and Witnesses Unit (VWU) of the court feels should attend. The judges added that if ‘Witness 3’ consented, the defense may also interview him in the absence of prosecutors but in presence of registry staff and any persons the VWU feels should be present during the interview.

Prosecutors were also ordered to make audio or video recordings of the interview unless the witness objected.