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Defense Examines Reliability of Intermediary 316


Today in the trial of Thomas Lubanga, who is charged with the war crimes of conscripting, enlisting, and using child soldiers in the Democratic Republic of Congo during 2002 and 2003, Presiding Judge Adrian Fulford opened the session by thanking the defense and prosecution for their “highly cooperative stance adopted last night” to resolve outstanding issues of disclosure. Defense counsel brought the issue before the chamber when the prosecution failed to meet certain requests for information. Judge Fulford announced that “a substantial number of problems have been resolved” by the parties and directed the prosecutor, Manoj Sachdeva, to review remaining issues. The judge made it clear that outstanding disclosure issues will be resolved by the end of today.

‘Intermediary 316’

Defense counsel Jean-Marie Biju-Duval continued cross-examination of Nicolas Sebire, former investigator in the Office of the Prosecutor (OTP), about the prosecution’s relationship with ‘intermediary 316.’ An earlier witness (‘witness 15’) accused ‘intermediary 316’ of bribing and coaching him to give false evidence that he was a child soldier in the militia of the accused. Defense counsel referred to several notes or emails authored by Mr. Sebire that, on their face, demonstrated concern about the reliability of ‘intermediary 316.’ Mr. Sebire responded that his notes reflected the normal need to cross-check information from an intermediary.

There were two aspects to the work of ‘intermediary 316’: that of informant providing intelligence and that of introducing the OTP to child soldiers. Mr. Sebire testified that ‘316’ provided good information but had no experience for the second aspect of his job, following up with child soldiers. He did not elaborate.

Defense counsel referred to a May 2006 email from Mr. Sebire to his investigation team, stating that it was difficult to justify payments to ‘intermediary 316’ and that some of the information he provided was “bizarre” and required cross-checking. Countering the implication that he had been concerned about something irregular, the witness explained that the difficulty in justifying payments related to the lack of rules and regulations for paying non-staff members of the International Criminal Court (ICC). As for the reference to “bizarre” information, Mr. Sebire distinguished between suspect and surprising information, the latter being what he referred to. Cross-checking was normal, he asserted. It does not mean the information was bad. In May 2006, a decision was taken to limit ‘intermediary 316’s’ access to people in the ICC and to strictly control the use of the information, Mr. Sebire added.

Judge Fulford later advised the prosecutor to carefully review the disclosure of documents underlying the statement that “information [provided by ‘316’] was bizarre and definitely needs to be cross-checked.” Mr. Sachdeva responded that a redacted disclosure was in process.

When Mr. Biju-Duval asked whether the team reassessed the testimony of child soldiers introduced by ‘intermediary 316’ in light of the concerns, the witness responded that it was normal to reassess testimony when new evidence comes to light.

‘Witness 35’

Defense counsel inquired about the relationship between ‘intermediary 316’ and ‘witness 35,’ a commander in the Union of Congolese Patriots (UPC), who allegedly participated with troops in a number of attacks. ‘Intermediary 316’ introduced the OTP to ‘witness 35’ and facilitated his travel to Kampala, Uganda for interviews with the OTP investigators. There was an incident, discussed in detail in private session, where ‘witness 35’ complained during an interview that ‘intermediary 316’ took a portion of money allocated to ‘witness 35’ for hotel and food expenses. ‘Intermediary 316’ allegedly did so because the witness used payments made to him for other purposes. Though Mr. Sebire was unable to go to the hotel to confirm this, he found the intermediary believable. He still affirmed that overall payment to ‘witness 35’ was necessary for him to continue the interview. 

Mr. Biju-Duval raised another allegation by ‘witness 35’ that ‘intermediary 316’ promised the OTP would purchase all products he needed. Though he could not recall specifics after five years, Mr. Sebire responded that he must have asked ‘intermediary 316’ for an explanation and reminded him that the OTP could not make such a purchase. During his subsequent interview with ‘witness 35,’ Mr. Sebire secured his agreement on record that the OTP had made no promises to him.

Defense counsel sought to show that ‘witness 35’ was a fraud and not the UPC officer he claimed to be. Mr. Sebire confirmed that ‘35’ referred to a notebook during his interview with the OTP investigators, but maintained there was nothing unusual about an interviewee reviewing his own notes to aid his memory.  The notebook contained names of places where ‘witness 35’ allegedly fought and names of his alleged commanders.

Because he had no opportunity to review the transcripts of his interviews with ‘witness 35,’ Mr. Sebire could not recall errors ‘witness 35’ allegedly made, such as not knowing the name of the military arm of the UPC or of his commander. In response to the prosecutor’s intervention, Judge Fulford advised Mr. Biju-Duval that, “The witness is clearly uncertain about what he says. You should be aware that the equivocal way he answered the last question [and other questions based on the interview transcripts] does not provide much in the way of evidence for the Bench.” Mr. Sebire did agree that he was not impressed by the way ‘witness 35’ told his story, though he said that he did not necessarily question his factual statements.

‘Witness 15’

Before the day’s adjournment, defense counsel began examining Mr. Sebire about ‘witness 15,’ who testified in June 2009 and March 2010 that he lied to OTP investigators at the bidding of ‘intermediary 316.’ Counsel asked the witness whether ‘witness 15,’ on being introduced to Mr. Sebire by ‘intermediary 316,’ told the investigator that he was unwilling to desert the UPC and not ready to cooperate, thus contradicting what ‘intermediary 316’ said. Mr. Sebire replied that ‘witness 15’ was not unwilling to cooperate. He just did not want to leave his militia at that time, and OTP investigators could not see how to proceed without endangering him.

Mr. Sebire acknowledged that it was likely he gave ‘witness 15’ a telephone because he agreed to furnish information on delivery of weapons. It was unclear when this occurred. Mr. Sebire said he could not recall if he gave ‘witness 15’ money. Cross-examination of this witness will continue tomorrow.

‘Witness 598’

Judge Fulford addressed the prosecutor about the availability of ‘witness 598’ to testify on Monday, November 29. The prosecution has requested ‘witness 598’ be substituted for ‘witness 555,’ who was to testify about the alleged climate of fear and intimidation in Bunia among individuals alleged to have cooperated with the ICC. ‘Witness 555’ subsequently refused to testify. There was some confusion over the chamber’s decision that the OTP would be allowed to call ‘witness 598,’ leading to his unavailability on Monday, November 29, as the chamber had projected. The witness will now appear on December 1, 2010. The chamber admonished the prosecution that they were to confine his testimony to topics ‘witness 555’ would have covered.