The International Criminal Court (ICC) prosecutor has asked trial judges to permit prosecutors to take testimony from witnesses who were scheduled to testify in the Thomas Lubanga trial before proceedings were stayed last July. The prosecutor wants to take the testimony of these witnesses while proceedings are stayed pending the decision of the appeals chamber.
In a September 16, 2010 filing, ICC prosecutor Luis Moreno-Ocampo 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. 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.
The prosecutor said that on September 13, 2010 the prosecution disclosed to Mr. Lubanga’s defense the identity of the individual known as ‘intermediary 143’ who was at the center of the suspension of the trial.
The prosecutor also argued that trial judges had the authority to effect a partial lifting of the stay of proceedings, and further that article 56 of the Rome Statute provided that when presented with a unique investigative opportunity, parties to the trial may take testimony in anticipation that the evidence might later be admitted at a future trial.
According to the prosecutor, nothing in the Rome Statute that formed the ICC, or the court’s Rules of Procedure and Evidence, defined a stay or specifically limited the chamber’s power to amend the stay or provisionally allow interim activity notwithstanding the stay. He contended that the power to order a stay was intertwined with the chamber’s inherent authority to prevent further or more intrusive breaches of the parties’ fundamental rights.
“Thus, the possibility of taking evidence notwithstanding that there is no ongoing trial is sanctioned by the statute. It also would serve the fundamental rights of the accused [as] the taking of steps at this point will shortcut the process if the stay itself is limited, and by shortcutting the proceedings it will reduce the length of his pre-judgment incarceration,” Mr. Moreno-Ocampo argued.
He added that a proposal to allow the chamber to hear testimony that might be admitted without further delay if the stay is lifted in advance of the possible resumption of the trial would better serve the rights the parties to the case, “of the victims who deserve closure and of witnesses who face continuing stress from the indefinite postponement of their testimony.”
The prosecutor argued further that it would serve the court’s interest by enabling the use of its resources notwithstanding that the trial is stayed: “This provisional action during the pendency of the stay order would preserve the chamber’s ruling that trial proceedings must be stayed and permit the appeals chamber to resolve the underlying legal and factual issues.”
On July 8, 2010, trial judges stayed proceedings in the war crimes trial after the prosecution failed to disclose the identity of ‘intermediary 143’ to the defense. The judges said the “refusal” by the prosecution to honor two disclosure orders meant that a fair trial for Mr. Lubanga was not possible.
However, the prosecution argued that if it were to immediately disclose the identity of the intermediary, who was in the Democratic Republic of Congo (DRC), he would be at risk of attacks from Mr. Lubanga’s supporters. Accordingly, prosecutors asked the court to grant them some time to institute protective measures for the intermediary, such as his relocation from the DRC, before his identity could be revealed.
The trial judges insisted that disclosing the intermediary’s identity to only the defense team and its resource person in Congo would pose no threats to the security of the individual. When prosecutors still failed to reveal the intermediary’s identity, trial judges ordered for Mr. Lubanga’s release on July 15, 2010. He, however, remains in ICC detention until appeals judges rule on a prosecution appeal against his release.
Prosecutors at the ICC charge that Mr. Lubanga enlisted and conscripted children under the age of 15 years and used them “to participate actively” in armed conflict. The alleged crimes were committed between September 2002 and August 2003 in Ituri province in eastern DRC. Mr. Lubanga has denied the charges and instead accused intermediaries of the OTP of having bribed and coached witnesses to give evidence against him.
Mr. Moreno-Ocampo argued in his latest filing that after trial judges imposed the stay and directed that no further submissions would be entertained, they clarified that this order did not bar the parties to the trial from making filings that were directly relevant to the stay.