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Lubanga Opposes Prosecutor’s Bid To Interview Pending Witnesses

The defense for war crimes accused Thomas Lubanga has this week opposed the bid by International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo to take testimony from witnesses, who were previously scheduled to testify in the trial, even as proceedings remain suspended. 

Last week, the prosecutor asked trial judges to permit prosecutors to take the testimony of witnesses, who were scheduled to testify in the trial before proceedings were stayed last July. The prosecutor argued that should the stay be lifted by the appeals chamber, trial judges would then determine whether to admit the testimony into evidence in the case. He argued that this proposal was consistent with the law setting up the ICC, as it authorized trial chambers to take testimony even when no proceedings were actively underway.

Lead defense attorney, Catherine Mabille, however, countered in a September 20, 2010 filing by dismissing the prosecution’s application as “clearly inadmissible.” She argued that none of the provisions in the Rome Statute provided for the possibility for evidence to be collected and submitted to judges while there was a stay of proceedings.

Ms. Mabille said the prosecutor’s application did not have any legal basis and was designed exclusively to get the trial chamber to review its decision staying the proceedings, yet the appeal chamber was considering the prosecutor’s appeal against that decision. “In seeking the further hearing of witnesses …the prosecutor is in fact asking for the immediate lifting of the suspension of proceedings and the resumption of the trial,” she argued.

According to the defense lawyer, it was up to the appeals chamber to decide whether to cancel the stay of proceedings and order the resumption of the trial, or to invite the trial chamber to reconsider the issue.

The defense has accused intermediaries of bribing and coaching witnesses to provide false testimony to court. This prompted judges to order prosecutors to produce two intermediaries to testify. The testimony of the third was brought to an abrupt end by the stay of proceedings.

Besides the intermediaries, trial judges also ordered three prosecution investigators to take the witness stand, although none had appeared by the time the trial was suspended. The prosecution was also planning to call three or four rebuttal witnesses (or take their testimonies) before the defense would file its application for judges to consider dismissing the case on the grounds of abuse of process.

On July 8, 2010, the trial chamber presided over by Judge Adrian Fulford ordered a stay of proceedings due to 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 intermediary helped prosecution investigators in the Democratic Republic of Congo (DRC) to identify persons who testified against Mr. Lubanga.

The prosecution a week ago disclosed to the defense the identity of ‘intermediary 143’. The prosecution does not intend to question this intermediary nor does it plan to call him as a witness. Early in July, the defense said it could not continue with the cross-examination of ‘intermediary 321’ who was in the witness stand then, if it were unaware of the identity of ‘intermediary 143’.

In hesitating to comply with the judges’ orders last July, prosecution stated that revealing the identity of ‘intermediary 143’ before protective measures were put in place for him would have put his life at risk.

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. According to prosecutors, Mr. Lubanga was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), an armed group allied to the UPC that used child soldiers in inter-ethnic fighting in Congo.

Mr. Moreno-Ocampo argued last week that allowing prosecutors to take the testimony of the pending witnesses as the appeals ruling is awaited would better serve the rights the parties to the case, as well as those “of the victims who deserve closure and of witnesses who face continuing stress from the indefinite postponement of their testimony.” He added that it would also serve the court’s interest by enabling the use of its resources notwithstanding that the trial is stayed.

However, the defense has said this week that the prosecution was wrong to assume that the stay of proceedings was essentially based on the non-disclosure of the identity of ‘intermediary 143’ and that once his identity was disclosed then the trial could resume.