Thomas Lubanga’s trial today stalled as prosecutors made spirited pleas to judges at the International Criminal Court (ICC) to reconsider their order for the disclosure of the identity of a prosecution intermediary.
Prosecutors pleaded that if the identity of ‘intermediary 143’ were revealed to Mr. Lubanga’s defense before protective measures were instituted for the intermediary, his security would be compromised. The reluctance of the prosecution to implement the judges’ order handed down yesterday stalled today’s hearing, with the witness scheduled to continue giving evidence spending all day in the waiting room.
Judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann, rejected the prosecution’s repeated pleas and issued a fresh order late today that the identity of ‘intermediary 143’ be revealed to the defense team, including a “defense resource person” who is based in the Democratic Republic of Congo (DRC).
At the start of the day’s proceedings, Judge Fulford pointed out that the prosecution had not honored the order issued yesterday and planned to appeal the order. The defense had indicated since yesterday that they could not proceed with the cross-examination of ‘intermediary 321’ who is currently giving evidence if they were unaware of the identity of ‘intermediary 143’.
Stated defense attorney Jean-Marie Biju-Duval: “The trial chamber is not gathering information here from a factual witness. Rather, the trial chamber is, in hearing this testimony, ascertaining whether ‘intermediary 321’ did have or did show an inappropriate form of behavior and it’s up to the chamber to ascertain whether there is a serious probability that ‘321’ lied and incited people to lie.”
According to testimony heard from some defense witnesses, certain intermediaries of prosecution investigators incited witnesses to lie to court. The intermediaries going by the numbers 321 and 143 are among those who have been singled out as having bribed, or coached witnesses to claim that they were former child soldiers in the Union of Congolese Patriots (UPC), the group Mr. Lubanga is alleged to have led.
Mr. Lubanga is charged with recruiting, conscripting and using child soldiers in armed conflict in the DRC between 2002 and 2003.
Because of the incriminating testimony heard about the conduct of these intermediaries, judges ordered the Office of The Prosecutor (OTP) to produce the intermediaries and the investigators they worked with. But yesterday prosecutors reported that although ‘intermediary 143’ had earlier consented to testifying, he had since asked to be provided with a document setting out the protective measures the court would offer him before he would allow to give testimony.
Today, the judges recalled that on May 12, 2010 they ruled that to enable the defense to conduct necessary and meaningful investigations, and to secure a fair trial for the accused, it was strictly necessary for the identity of ‘intermediary 143’ to be disclosed.
Accordingly, judges rejected an appeal from prosecutors to suspend the order for the identity of ‘intermediary 143’ to be revealed to the defense pending a proposed appeal by the OTP. They ordered the OTP to make the disclosure, and gave the defense up to the afternoon to prepare for questioning the current witness based on that disclosure.
In the afternoon, Sara Criscitelli, the prosecution coordinator, appeared and told judges that the OTP was finding it difficult to disclose the identity of the intermediary. She explained that if the identity of the intermediary were disclosed, he would be at the risk of being killed by members of the Hema ethnic group in Bunia, in eastern Congo, who would consider him a traitor. Most of the supporters of the UPC are from the Hema group.
However, the judges ruled that they did not have reason to believe that ‘intermediary 143’ would be in danger if his identity were revealed to the defense team.
“The limited disclosure that we have ordered in our judgment has the result of ensuring there’s no deterioration of the security position of that individual,” said Judge Fulford. He ordered that only Mr. Lubanga, his defense team in The Hague, and the resource person in Congo should have access to the disclosed information. Moreover, they were not to reveal or use this information for any purpose other than questioning in court.
The defense will tomorrow continue cross-examining ‘intermediary 321’.