Judges today ruled that defense attorneys in two separate war crimes trials being heard at the International Criminal Court (ICC) are free to discuss the testimony of four witnesses common to the trials.

The judges also ruled that the accused – Thomas Lubanga and Germain Katanga – are entitled to receive all the information disclosed to their lawyers that is related to their cases. Prosecutors at the court had argued that defense counsel could not provide to the accused any information deemed to be confidential, sensitive, privileged, or related to national security.

But in their ruling this afternoon, the judges stated that under the Rome Statute, the personal right of the accused to receive all material relevant to their file has clear foundations.  They also ruled that Mr. Lubanga and Mr. Katanga’s attorneys are entitled to discuss the testimony of the four common witnesses, provided they do not discuss or exchange confidential information that has not been given to the other team.

Mr. Katanga, a former Congolese militia leader, is jointly charged with Mathieu Ngudjolo Chui, also a Congolese national, with three crimes against humanity and seven war crimes. Prosecutors at the ICC allege that the two men led militia groups that used child soldiers and committed atrocities against members of the Hema ethnic group in the Democratic Republic of Congo (DRC).

The Union of Congolese Patriots (UPC), which Mr.  Lubanga is alleged to have led, was predominantly made up of the Hema and fought against groups which ICC prosecutors claim were led by Mr. Katanga and Mr. Ngudjolo.

It is not known whether the four witnesses witness common to the two trials are for the prosecution or the defense.

The judges ruled that although article 67(2) of the Rome statute and Rule 77 of the Rules of Procedure and Evidence refer to the ‘defense’ generically and not to the accused individually, there is no statutory interpretation to support the conclusion that it was contemplated that the accused could be routinely denied access to material that has been served on the defense counsel.

This ruling was in agreement with the submissions by Mr. Katanga’s attorneys, who argued that entitlement to disclosure was for the accused rather their counsel. The attorneys submitted further that international practice supports the contention that full disclosure to the accused is one of the principles of fundamental justice, and that it is impermissible to grant disclosure to counsel and not to the accused.

Judges said if the prosecutors’ interpretation were correct, no confidential, sensitive, privileged or national security information could be provided to the accused without a specific order of the chamber granting authorization.

“This approach would tend to operate to deny the accused access to a substantial quantity of evidence relevant to the case because the court would be required to balance the accused’s application for personal access to disclosed material against the requirements of confidentiality, sensitivity, privilege, or national security,” ruled the judges in a ruling read by Judge Adrian Fulford.

Moreover, added the judges, the chamber would be asked to rule, item by item, on disclosure and its extent, which “would result in unfairness to the accused because of the lack of or delays to access to relevant trial material, and it would impose an intolerable burden on the chamber given the number of individual rulings that would be necessary.”

The judges said article 8 (3) of the Code of Professional Conduct of counsel does not apply to restrict the information that can be properly passed between the accused and his defense team. “However, it has been recognized by counsel for Mr. Katanga and Mr. Lubanga that in exceptional circumstances restrictions may be appropriate, for instance if it is sufficiently demonstrated that an accused has been misusing confidential or protected information to intimidate witnesses or participating victims,” said the judges.

Mr. Lubanga’s defense will present a new witness tomorrow.