International Justice Monitor

A project of the Open Society Justice Initiative

Judges Fault Lubanga Prosecutors Over Disclosures

International Criminal Court (ICC) judges have faulted prosecutors for failing to disclose certain information relating to a prosecution witness to the defense of war crimes accused Thomas Lubanga.

The defense has complained that the Office of The Prosecutor (OTP) has failed to honor its disclosure obligations, including those related to this unnamed witness, who was discussed at a status conference today, as well as those concerning an intermediary who was at the center of the stay of proceedings in the trial last July.

Judges today gave the prosecution up to Friday next week to provide information as to why they decided that the person who gave them the information was not credible, prompting them not to disclose this information to the defense.

Presiding Judge Adrian Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,” not just in the particular instance of the witness the defense petitioned about today. 

Catherine Mabille, the lead defense attorney, said there were many outstanding disclosures that the OPT had to make. “We are not satisfied with the disclosure by the OTP [related to] the elements for the request on abuse of process,” stated Ms. Mabille. “If possible we would like to include this issue in our request with regard to abuse of process.” 

The defense will next month file an application asking judges to dismiss the case because of the alleged coaching of prosecution witnesses by intermediaries of the OTP. It has requested the OTP to disclose various documents and communications related to the intermediaries alleged to have played a role in corrupting evidence.

Judge Fulford said the defense should next week set out the details of the alleged non-disclosure “so that we understand exactly what they are and so the prosecution has had it spelled out in writing.”

Mr. Lubanga, whom the ICC prosecutors allege was the founder of Union of Congolese Patriots (UPC), is accused of enlisting, conscripting, and using child soldiers in armed conflict during 2002 and 2003. The prosecutors also charge that Mr. Lubanga was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), which used child soldiers in inter-ethnic fighting in the Democratic Republic of Congo.

The court is currently hearing the evidence of intermediaries and investigators from the OTP, after which the prosecution will call some rebuttal witnesses. It is expected that the witnesses will complete giving testimony at the end of this month and then the defense will file its application for dismissal of the case by December 12.

The trial resumes on Monday, November 8.