Three days after appeals judges ordered the resumption of the Thomas Lubanga trial, the defense team today told trial judges that the prosecution had failed to effect all the disclosures ordered by judges relating to the identity of an intermediary.
Lead defense counsel Catherine Mabille indicated during a court session that the failure by the Office of The Prosecutor to (OTP) to make full disclosure could hamper the defense’s cross-examination of the scheduled witnesses. But the OTP countered that it had fully honored the disclosures ordered by trial judges.
Failure by the prosecution to disclose to the defense the identity of ‘intermediary 143’ last July prompted the trial chamber, presided over by Judge Adrian Fulford, to suspend the trial and order Mr. Lubanga’s release.
However, upon appeal by the prosecution, appeals judges last Friday ruled that trial judges should have sanctioned the prosecutor rather than staying the trial. They reversed both the stay of proceedings and the release order for the former leader of the Union of Congolese Patriots (UPC) rebel group, who is accused of enlisting, conscripting, and using children in armed conflict during 2002 and 2003.
In today’s session, Judge Fulford urged the defense and the prosecution to try and agree on the disclosures needed for the defense to cross-examine the scheduled witnesses, referring to the long delays the trial has experienced. In detention at the International Criminal Court (ICC) since March 2006, Mr. Lubanga’s trial started in January 2009.
“We did receive certain documents on Friday evening that we were able to look at this morning but I would not hide from you the fact that we’re not happy with this disclosure and that we really need additional information,” Ms. Mabille told judges. She said the disclosure made by the OTP about the identity of ‘intermediary 143’ and the role he played in contacting prosecution witnesses was not sufficient.
The defense attorney said she had today sent an email to the prosecution indicating the additional disclosures needed. Ms. Mabille said the defense would need 10 days after receiving full disclosure from the prosecution before it would resume cross-examining ‘intermediary 321’ who was in the witness stand at the time the trial was suspended.
“We have attempted to disclose what was ordered,” said prosecuting attorney Manoj Sachdeva. This, according to him, included identity information, background information relating to his previous work, and the contacts between this intermediary and witnesses.
Mr. Sachdeva told judges that some of the material the defense had requested for today did not fall within the disclosure order issued by judges. He also pointed out that there were no allegations against ‘intermediary 143’ and that he had not been called to testify.
Mr. Sachdeva stated there were materials disclosed in the past where the name of ‘intermediary 143’ was redacted. The prosecution was going to disclose those materials with the intermediary’s name un-redacted, he said.
The defense last July told judges that they could not continue with the cross-examination of ‘intermediary 321’ before the prosecution disclosed the identity of ‘intermediary 143’. Once the prosecution failed to disclose the identity of that intermediary, trial judges suspended the trial.
Judge Fulford also announced that following last week’s rulings by appeals judges, it was no longer necessary for the trial chamber to sanction the prosecution for failing to implement the disclosure order three months ago.
The judge said, “Now that the issue has been fully considered and resolved by the appeals chamber, resulting in an unequivocal statement of the position… certainly as far as we’re concerned, nothing more will be said or done.”
Today’s proceedings centered on the possible dates on which witnesses who were scheduled before the suspension of the trail would be available to give evidence. The OTP was given up to Friday to provide a list of the ending witnesses and when they would be ready to give evidence. These witnesses include two intermediaries, two investigators from the OTP, and at least three rebuttal witnesses.
Judge Fulford said given the “very substantial” delays to Mr. Lubanga’s trial, the defense and prosecution should have a “sensible conversation” to agree on the disclosures related to ‘intermediary 143’. If the defense was not satisfied by the prosecution’s response, oral arguments would be heard in court on Wednesday.