Judges in the Thomas Lubanga war crimes trial have directed prosecutors to reveal to the defense details of the professional backgrounds of the intermediaries they used in gathering evidence against the accused. At least two of the intermediaries will testify in the trial at the request of judges.
An appeal by the Office of The Prosecutor (OTP) against revealing to the defense details of the professional backgrounds of the intermediaries has been rejected by judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann.
On Wednesday, presiding judge Adrian Fulford asked prosecutors to explain why they had not complied with an order handed down in mid May for this information to be disclosed the defense. The information that had to be revealed included the contracts between the OTP and the 23 intermediaries who were engaged in putting together the case against Mr. Lubanga, and details of any work they might have done with the Congolese government and non-government organizations, as well as contacts they had with organizations that worked with children.
Prosecuting lawyer Manoj Sachdeva told judges that the OTP had disclosed some information to the defense, but some transcripts were still being transcribed and were only likely to be finalized on June 15. Judge Fulford directed that draft transcripts be provided to the defense forthwith and that next Monday the OTP should state when it would be able to provide the final transcripts to Mr. Lubanga’s lawyers.
Mr. Lubanga’s lead defense counsel Catherine Mabille complained to judges that the OTP had failed to honor disclosure obligations related to the intermediaries. “We have asked the OTP for a number of items of information with regard to intermediaries, namely contracts linking them to prosecutors. We made the request on May 18  but we have received no reply,” said Ms. Mabille.
She added that the defense needed that information to prepare for its questioning of the two intermediaries who would be giving evidence. Besides the intermediaries, judges have asked the OTP to provide one or two of its investigators to take the witness stand. Ms. Mabille said on Wednesday that after hearing from the intermediaries and the OTP investigators, the defense will file an application for judges to consider throwing out the case on grounds of abuse of process.
The defense has said that intermediaries coached witnesses and concocted evidence implicating Mr. Lubanga, who is accused of conscripting, recruiting, and using child soldiers during 2002 and 2003. Mr. Lubanga was the alleged leader of the Union of Congolese Patriots (UPC), a group that used child soldiers in inter-ethnic fighting in the Democratic Republic of Congo’s Ituri province.
Meanwhile, prosecutors said on Wednesday that they had contacted three individuals who could potentially testify as representatives of the OTP. “The discussions with two of them haven’t been finalized due to the fact that they are not in Europe and are on assignment in yet another country,” reported prosecuting attorney Nicole Samson.
She said the OTP would continue discussing with these individuals to determine when they would be available to testify. “The third person is able to testify. He will testify in relation to intermediary 321 and there are fewer restrictions on his availability since he is currently a staff member of the OTP although he is not in The Hague,” said Ms. Samson.
Judge Fulford said that the OTP representative would give evidence on the use of intermediaries in Mr. Lubanga’s case. He said the individual would be questioned about “the way in which the office contacted, selected, and managed the individuals interviewed during the investigation and, moreover, this individual will be able to explain the precise role of the intermediaries, how they were selected, and the tasks they performed.”