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Judges Issue Warning To Prosecutors As Lubanga’s ICC Trial Is Halted

This week saw judges at the war crimes trial of Thomas Lubanga suspending the proceedings and declaring that they would issue warnings to senior officials of the Office of The Prosecutor (OTP) for misconduct before the court.

Judges at the International Criminal Court (ICC) Thursday halted the proceedings in the trial of the former Congolese rebel leader, citing abuse of the court’s process. The judges also said they planned to send a formal warning to senior OTP officials “for a deliberate refusal to implement our unequivocal orders”.

When presiding judge Adrian Fulford asked Deputy Prosecutor Fatou Bensouda who the warning should be addressed to, she said it should be to herself and ICC Prosecutor Luis Moreno-Ocampo.

According to the judges, the immediate cause of the stay of proceedings was the prosecution’s “unequivocal refusal to implement the repeated orders” made by judges for the disclosure of the identity of ‘intermediary 143’ to the defense.

The individual referred to as ‘intermediary 143’ worked as an agent of prosecution investigators in the Democratic Republic of Congo (DRC) in identifying persons who testified against Mr. Lubanga. In hesitating to comply with the judges’ orders, prosecution staff yesterday submitted that revealing the identity of ‘intermediary 143’ before protective measures were put in place for him would have put his life at risk.

“The evidence that has come out demonstrates that there is a risk in Bunia that you can be killed, or one can be killed if the Hema community considers you to be a traitor, and the persons who are witnesses against Lubanga or who assist witnesses against Lubanga are regarded as traitors,” Sara Criscitelli, the prosecution coordinator, told judges on Wednesday.

However, on the same day the judges ruled twice that they did not have reason to believe that ‘intermediary 143’ would be in danger if his identity were revealed to the defense team, including their “resource person” based in Congo, and to no one else.

Prosecutors said the intermediary needed to be relocated and for other protective measures to be offered to him before it was safe to reveal his name, even to the few people the judges had proscribed.

“It is the duty of the Office of The Prosecutor, as well as the court, to protect persons who may be at risk because of interaction with the court, and that is a fundamental, absolute duty of protection,” argued Criscitelli. “It’s not flexible. It’s not one that can be weighed against other factors.”

While announcing the stay of proceedings on Thursday, judge Fulford said the prosecution had declined to obey the order issued by judges.

He said that the court would on July 15, 2010 hear submissions regarding the continued detention of Mr. Lubanga, who has been held in The Hague by the ICC since March 2006. He added that the judges were ready to receive an application from prosecutors for appeal of the stay of proceedings decision.

Otherwise, Judge Fulford stated, proceedings against Mr. Lubanga were being halted in their entirety. “There are to be no filings, no submissions, no applications on any issues other than those which I have just indicated,” judge Fulford said, referring to the readiness of judges to receive application for leave of appeal and regarding Mr. Lubanga’s continued detention.

“That means that the court officer currently in the DRC should return. We do not propose to hear any further evidence. Witness 38 should receive our apologies if he has been inconvenienced as should the other witnesses whose evidence we had intended to hear by way of a video link,” Judge Fulford stated.

Mr. Lubanga, whom prosecutors allege was the founder of the Union of Congolese Patriots (UPC), is accused of enlisting, conscripting and using child soldiers in armed conflict during 2002 and 2003. The ICC’s prosecutors also charge that Mr. Lubanga was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), an armed group allied to the UPC which used child soldiers in inter-ethnic fighting in Congo.

Mr. Lubanga’s trial started on January 26, 2009, with the prosecution resting its case on July 14, 2009. The defense case started on January 29 this year, its opening having been delayed as judges considered an application from representatives of victims taking part in the trial for inhumane treatment and sexual crimes to be added to Mr. Lubanga’s charge sheet.

Mr. Lubanga’s defense has claimed that prosecution intermediaries bribed and coached witnesses to provide false testimony to court. This prompted judges to order prosecutors to produce two intermediaries to testify, and to disclose the identity of ‘intermediary 143’. Three prosecution investigators have also been ordered to take the witness stand although none has appeared yet.

Mr. Lubanga’s defense has indicated in recent days that it was on the verge of filing an application for judges to consider throwing out the case against Mr. Lubanga, on the grounds of the abuse of process perpetuated by the intermediaries.

In their written decision on Thursday, judges stated that they were at the time hearing evidence on the allegation that the prosecution knowingly employed, or made use of, intermediaries who influenced individuals to give false testimony, thereby abusing its powers. “Failure to disclose information which is relevant for the examination of witnesses testifying in this context is likely to be relevant to [the] defense abuse [of process] application,” stated judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann.

The judges stated that the prosecution had declined to be checked by judges. In these circumstances, it was necessary to stay the proceedings as an abuse of the process of the court because of the material non-compliance with the judge’s orders of July 7, 2010 related to disclosure of the identity of ‘intermediary 143’.

“Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework,” the judges stated.

The defense said on Tuesday that it could not proceed with the cross-examination of ‘intermediary 321’ if were unaware of the identity of ‘intermediary 143’.

Next Thursday the judges will hear submissions about whether Mr. Lubanga should be released.