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Intermediary Reappears, Gives All Evidence In Closed Session

An intermediary, whose testimony was interrupted last July by the stay of proceedings in war crimes trial of Thomas Lubanga at the International Criminal Court (ICC), today took the witness stand afresh. However, he gave all his evidence in closed session. 

The witness, who goes by the code name ‘intermediary 321’, had testified for two days last July when prosecutors failed to disclose to Mr. Lubanga’s defense the identity of another intermediary, prompting trial judges to suspend the trial. The defense had stated that it needed to know the identity of ‘intermediary 143’ before continuing the cross-examination of ‘intermediary 321’, who was one of the individuals that contacted Congolese children who testified against Mr. Lubanga.

At the start of today’s proceedings, defense lawyer Jean-Marie Biju-Duval stated that it would be difficult for him to pose any questions to ‘intermediary 321’ in public session. While the defense attorney had stated that he would try and do some cross-examination of the witness in public session, by the end of the day’s proceedings he had not done any questioning in open court.

Defense witnesses have in the past implicated ‘intermediary 321’ in impropriety, including coaching and bribing witnesses to allegedly give testimony to court that they had served as child soldiers in the militia, which ICC prosecutors allege Mr. Lubanga commanded during 2002 and 2003. 

According to prosecutors, Mr. Lubanga recruited and conscripted children into the Union of Congolese Patriots (UPC) and its allied militia – the Patriotic Forces for the Liberation of Congo (FPLC) – and used them in active combat in inter-ethnic conflicts in the Democratic Republic of Congo (DRC). Mr Lubanga has denied the charges, arguing that he was not in charge of the military affairs of the group ICC prosecutors allege he commanded.

Judges have asked intermediaries and investigators from the Office of The Prosecutor (OTP) to testify, following persistent claims by defense witnesses that some of the officials who worked for the OTP played a role in corrupting evidence. Once the intermediaries and investigators complete testifying, Mr. Lubanga’s defense plans to ask judges to dismiss the trial on the ground that there was abuse of process orchestrated by agents of the OTP.

According to Presiding Judge Adrian Fulford, ‘intermediary 321’ was supposed to have given evidence last week. However, due to miscommunication between the court’s Victims and Witnesses Unit (VWU) and the prosecution office, the witness last week travelled to The Hague rather than to the location in the Congo from where he was supposed to give the remainder of his evidence via videolink. It was not clear whether today’s testimony by this witness was today given via videolink or in court.

Meanwhile, during today’s few brief moments of open court, lead defense counsel Catherine Mabille told judges the prosecution had not replied to their request made eight days ago to provide additional information on ‘intermediary 143’. According to her, this witness met other witnesses who came gave testimony during 2005 and 2007. “We need to have this information disclosed as soon as possible,” she said.

When Judge Fulford asked prosecuting attorney Manoj Sachdeva about outstanding disclosures related to ‘intermediary 143’, he responded that “everything disclosable has been disclosed” as regards the questioning of ‘intermediary 321’. 

However, Mr. Biju-Duval insisted they were still waiting for all relevant information that dates back to before 2007.

He went on, “I am ready to start [intermediary] 321’s examination, but I would like to inform the chamber that unfortunately, almost all of my examination will have to be done in private session.” He explained that the witness would be questioned about several unprotected names “and it would be artificial for us to be giving pseudo names”.

Court sat in closed session for the rest of the day, and it was not possible to know whether this witness had completed giving his testimony.

The trial continues tomorrow.