Trial judges have refused an application by prosecutors at the International Criminal Court (ICC) for permission to interview pending witnesses in the Thomas Lubanga trial while proceedings remain suspended.
In a ruling handed down on September 24, 2010, judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann rejected the prosecution’s request on the grounds that the Office of The Prosecutor (OTP) had not addressed one of the two reasons that led to the stay of proceedings.
The judges noted that prosecutors had complied with the order to disclose the identity of ‘intermediary 143’ to the defense. However, the prosecutors failed to declare whether they would obey orders issued by judges if they felt these orders went counter to the prosecution’s other obligations. “This second element of the chamber’s decision has not been addressed at all in the submissions of the prosecution,” stated the judges, adding that the issue only received a passing reference as part of the procedural history of the stay of proceedings.
In a September 16, 2010 filing, ICC prosecutor Luis Moreno-Ocampo asked trial judges to permit prosecutors to take testimony from witnesses, who were scheduled to testify in Mr. Lubanga’s war crimes trial before proceedings were stayed. He suggested 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.
In their ruling last week, trial judges stated that it was necessary for them to repeat that justice could no longer be done in the Lubanga case while the prosecutor continued to reserve to himself the right not to implement the chamber’s orders if he was of the view that they conflicted with his interpretation of his other obligations. As a result, judges would have lost control of a significant aspect of the trial proceedings, the ruling added.
“Indeed, the chamber may not even be aware of instances when its decisions are not being implemented if this approach is permitted. This serious infringement of the rule of law applies equally to proceedings in which ‘provisional’ evidence is received as it does to a resumed trial. The guarantees of a fair hearing would be absent in both situations,” the judges stated.
In addition, the judges noted that the chamber was required to ensure that the trial of the accused was conducted with full respect for his rights. They went on: “The chamber is unable to discharge this obligation whilst the prosecutor refuses to accept the authority of the court. Compliance with judicial orders lies at the heart of the principle of the rule of law – it is an irremovable and fundamental ingredient of a fair criminal trial.”
Proceedings in the Lubanga trial were suspended last July after the prosecution failed to comply with an order to disclose the identity of an individual who helped to contact prosecution witnesses. The OTP stated then than disclosing the identity of the intermediary before protective measures such as relocation were instituted for him would have put his life at risk.
In suspending the trial, the judges pointed out that no criminal court could operate on the basis that whenever it made an order in a particular area, it was for the prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. They added that it was judges, not the prosecutor, who decided on protective measures during the trial.
Mr. Lubanga, the alleged former leader of the Union of Congolese Patriots (UPC) rebel group, is on trial over the conscription, enlistment, and use of child soldiers in armed conflict during 2002 and 2003. He has denied the charges.
Legal representatives of victims participating in the trial have argued that once the identity of ‘intermediary 143’ was disclosed by the prosecution on September 13, it was unnecessary to maintain the stay of proceedings.
Lead defense attorney, Catherine Mabille, however, dismissed the prosecution’s application requesting the ability to take the testimony of pending witnesses as “clearly inadmissible.” She argued 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.
Besides, Ms. Mabille stated that 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 prosecution has appealed both the stay of proceedings and the order for Mr. Lubanga’s release, which was issued by trial judges on July 15 ,2010.