International Justice Monitor

A project of the Open Society Justice Initiative

Lubanga Trial Marred By Unavailability Of Witnesses

Thomas Lubanga’s war crimes trial at the International Criminal Court (ICC) today stalled as none of the witnesses who had been expected to give evidence this week were ready to take the witness stand.

Although hearings had been scheduled for Monday to Friday this week, during today’s proceedings Presiding Judge Adrian Fulford announced that because no witness was ready to give evidence, the trial would resume on Monday next week. 

Mr. Lubanga has been on trial from January 2009, although he has been in ICC detention since March 2006. He is accused of enlisting, conscripting, and using child soldiers in armed conflict during 2002 and 2003 when he allegedly headed the Union of Congolese Patriots (UPC) and its armed militia.

Trial judges last July halted the trial when prosecutors failed to implement an order to disclose the identity of an individual who had helped to contact former child soldiers that testified against Mr. Lubanga. Appeals judges on October 8 ordered a resumption of the trial, and since then, one witness has given evidence. This witness, who testified yesterday, is a field liaison officer for the Office of The Prosecutor (OTP) in the Congo. He initially testified last June but was called back at the bidding of Mr. Lubanga’s defense. 

Judge Fulford stated today that the chamber had been informed that ‘witness 38’, who was among those expected to testify this week, had been unable to travel to The Hague-based court because his passport was not ready. He was now expected to testify in the week of November 8.

Prosecutors last June stated their intention to call back this individual, who was the first witnesses to testify for the prosecution. He stated that he was a former child soldier in the UPC. Prosecutors said he was introduced to the OTP by ‘intermediary 316’, who is himself due to give evidence at the behest of judges.

The prosecutors have stated that ‘witness 38’ would testify that there was nothing untoward that took place between him and the intermediary. The OTP has said that he would be called as a rebuttal witness to affirm that he was never asked to lie to the court.

Judge Fulford also reported today that the OTP had informed him that no confirmation had been received regarding whether ‘Witness 555’ was willing to testify. The prosecution had therefore not yet decided on whether or not they wished to call him. The OTP has in the past indicated that it would call this witness to give evidence relevant to the alleged climate of fear and intimidation amongst persons in Bunia in eastern Congo in relation to UPC and its supporters, “specifically if they were alleged to have cooperated with the ICC.”

Prosecution lawyer Manoj Sachdeva stated that ‘witness 555’ would not testify next week. “We have not been in contact with the witness since last Thursday. We hope to be able to speak to him today to essentially ascertain whether he is going to testify,” Mr. Sachdeva said. 

Mr. Sachdeva also told the court that it would not be possible for an OTP investigator, who goes by the pseudonym ‘witness 582’, to testify next week. The plan is for this witness to testify via video link. 

Judge Fulford directed that if the video link would be difficult to set up or would delay the process, consideration should be given for a deposition to be taken with all interested parties present and able to ask questions. 

Finally, court heard that ‘intermediary 321’ who was supposed to give evidence this week via video link from Congo had instead travelled to The Hague due to miscommunication. This witness, whose time on the witness stand was interrupted by the imposition of the stay of proceedings last July, will need five days of orientation before he commences his testimony.

The trial is expected to resume on Monday next week with the evidence of ‘intermediary 321’.