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Defense Attorneys Oppose Summoning Of ‘Lubanga’s Cousin’

Congolese war crimes accused Thomas Lubanga’s attorneys today opposed an application by prosecutors for judges to summon a man purported to be the accused’s cousin to give evidence.

Prosecutors a week ago asked judges to summon the individual known as ‘Cordo’, who they said was a cousin to Mr. Lubanga, to give evidence about his alleged role in intimidating witnesses and influencing them to give false testimony.

During today’s hearing, defense attorney Jean-Marie Biju-Duval laid out the reasons why the defense was opposed to the prosecution’s application. He stated that whereas Mr. Lubanga had the right to be tried within the shortest time possible, “a lot of time has been wasted and we can not accept that a new delay is requested by the prosecution in order to organize the appearance of a certain individual.”

Mr. Lubanga has been in detention at the International Criminal Court (ICC) since March 2006. His trial started on January 26, 2009.  According to ICC prosecutors, he committed the war crimes of conscripting, recruiting and using child soldiers while he allegedly led the Union of Congolese Patriots (UPC) during 2002 and 2003.

“The application of the prosecutor is impossible to address because you can’t request the chamber to call a witness whose identity is still unknown and whose potential testimony is also unknown,” argued Mr. Biju-Duval. According to him, it was the responsibility of prosecutors to investigate and establish the identity of Cordo, and to then interview him. “If the witness refuses to appear, they can then ask the chamber to ask the witness to appear,” he said.

The defense also contended that the prosecution’s application was founded on error of fact because Cordo had never served as an intermediary of the defense. Besides, the defense considered that Cordo’s testimony would not be of any use.

“The issue here is knowing whether or not defense witnesses have lied,” stated Mr. Biju-Duval. “I wonder whether the testimony of Cordo will help chamber on that.”

But prosecuting attorney Manoj Sachdeva countered that there was evidence on record which suggested that Cordo asked a prosecution witness and two defense witnesses to lie to court. He added that court had been told that Cordo was related to Mr. Lubanga. If this was the case, he said, then the defense knew who Cordo was.

Added Mr. Sachdeva: “Cordo may not have been an intermediary as the defense suggests, but he certainly worked for the defense. He was used to facilitate contact between potential witnesses and eventually with defense resource persons and their lawyers.”

The prosecuting attorney argued that since judges had directed that prosecution intermediaries who had been accused of corrupting evidence should take the witness stand, the same should be required of defense intermediaries such as Cordo.

Judges did not make a ruling on the application.

Meanwhile, the first of the prosecution intermediaries will give testimony on Wednesday. Prosecutors said today that although this witness was in The Hague, he was still reading through the statements he made to the OTP. Some of those statements were made in 2009; others as recently as this month.

The defense questioned why the intermediary needed many days to go through his statements, some of which were recent. Mr. Sachdeva responded: “Of course he has recently been interviewed, therefore one would hope that his memory is better for [some] interviews. But we think that in order to answer questions properly and truthfully in court, he needs to familiarize himself properly with those statements.”

Presiding judge Adrian Fulford criticized the idea of the witness needing to refresh his memory as regards interview which took place a few days or a couple of weeks ago.

“It seems to us the whole process of witness familiarization isn’t really meant to address a situation of that kind where there has been a very recent process of providing a statement,” said the judge. “But given that the issue of self-incrimination arises with this witness, we are extremely reluctantly prepared to agree to him in these circumstances to look at the body of interviews.”