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Public Testimony Resumes With Prosecution Investigator

Public testimony resumed today in the trial of Thomas Lubanga at the International Criminal Court (ICC) after a week of closed sessions to take the testimony of ‘witness 582,’ an investigator for the Office of the Prosecutor (OTP), by deposition. Another OTP investigator, Nicolas Sebire, also known as ‘witness 583,’ testified based on his written statement submitted in evidence.

Trial Chamber I is hearing testimony about alleged witness tampering, following allegations that intermediaries used by the OTP bribed or coached witnesses to falsely testify that they took part in the 2002-2003 conflict in the Democratic Republic of Congo (DRC) as child soldiers in the militia of Mr. Lubanga. Intermediary 316, who testified earlier, denied the allegations.

Mr. Sebire has a long career in intelligence with the Paris Criminal Investigation Division on Anti-Terrorism, the International Criminal Tribunal for the former Yugoslavia, EUROPOL, the International Criminal Court, and INTERPOL. In court, he explained that the OTP turned to using intermediaries to locate potential witnesses when its movements in the DRC were restricted to certain times and geographic locations. Criteria for selecting intermediaries, according to the witness, included that they were not perpetrators of crimes and were not involved in the fighting.

An intermediary identified as ‘Mr. X’ was a Congolese intelligence agent. Initially, Mr. Sebire considered ‘Mr. X’ reliable because he was able to locate and contact individuals sought by the OTP. Later, however, he began to question this intermediary’s trustworthiness. Only after did Mr. Sebire learn that other members of the OTP and the ICC Registry were using ‘Mr. X’ to investigate matters for them. Neither ‘Mr. X’ nor ICC staff had informed Mr. Sebire beforehand, though he was considered the intermediary’s primary point of contact.

Mr. Sebire told the judges that he never suspected that ‘Mr. X’ might have been preparing witnesses to lie or to fabricate evidence. According to him, ‘Mr. X’ was not present during interviews with witnesses and was not given questions ahead of time.

‘Mr. X’ also introduced the investigator to ‘witness 35’ and ‘witness 15.’ Again, Mr. Sebire said ‘Mr. X’ was not present during interviews and was not given questions beforehand. ‘Witness 15’ earlier testified that ‘Mr. X’ bribed him to make false statements and that he (‘witness 15’) lied about his own identity. That surprised Mr. Sebire because witness’s story was consistent over several days of interviews. Another intermediary “systematically” referred to ‘witness 15’ by the same name he had given the OTP investigator. He had no suspicion that ‘witness 15’ might have lied.

Defense counsel, Jean-Marie Biju-Duval, elicited the witness’s agreement that the OTP established an office in Bunia in 2006, and by 2007 it was easier for the investigative teams to move around, though the security situation still required the use of armored vehicles.  He did not say how this affected the OTP’s use of intermediaries while court was in open session.

Regarding ‘intermediary 316,’ Mr. Sebire told defense counsel that he began working with his team in April 2005, and he used his services until he left ICC employment in September 2007. He had contact with ‘intermediary 316’ throughout that time though with variable frequency. Mr. Sebire considered him a critical intermediary because he made contact with members of the Union of Congolese Patriots (UPC), the group prosecutors allege Mr. Lubanga headed. Under cross-examination, the witness admitted that he never asked ‘intermediary 316’ to provide documents verifying the identity of potential witnesses. The OTP tried to secure that information and sometimes asked the witness to bring identity documents with him to the interview.

In response to Mr. Biju-Duval, Mr. Sebire said that he gave ‘intermediary 316’ a favorable recommendation when the OTP recruited him for a temporary contract as a field liaison. He was not consulted when ‘intermediary 316’ applied for a permanent liaison position. The intermediary was not selected because his work was mostly logistical, according to the witness. Still, Mr. Sebire later used him for intelligence gathering and to set up witness contacts. Reference was then made to an “incident” where OTP investigators from another team accused ‘intermediary 316’ of lying about threats against witnesses. Mr. Sebire said he was not in charge of either team at the time and could not comment.

Mr. Sebire’s testimony and cross-examination were interrupted numerous times when the judges ordered the session closed to the public for security purposes. It necessarily lessened public understanding of the testimony.

The chamber spent the last 20 minutes of today’s session attempting to help the parties resolve outstanding issues regarding disclosure. At the Chamber’s urging, prosecuting attorney Manoj Sachdeva agreed to provide defense counsel with a list of categories of documents ‘witness 583’ was given in preparation for testifying, though the witness claimed not to have used them.

Mr. Sachdeva resisted disclosing internal emails concerning possibly false testimony by its witnesses. The prosecutor’s concern was that it would set a precedent for disclosure of internal communications in other matters and impede the prosecution’s ability to make assessments. Mr. Sachdeva distinguished between opinions and facts, agreeing that facts should be disclosed but not opinions. (For example, a communication that states, “I consider this witness to be unreliable” is an opinion and not subject to disclosure. However, in the statement, “I consider this witness to be unreliable because he said X or did Y,” X and Y are subject to disclosure.) Presiding Judge Adrian Fulford appeared to accept this distinction. Mr. Sachdeva agreed to provide the judges with the disputed emails for their further consideration.

Judge Fulford ordered the parties to try to resolve remaining issues between themselves following adjournment of today’s session. Should they not be able to, they will advise the chamber, which will address the matter Tuesday morning when the trial resumes. Cross-examination of Mr. Sebire will then proceed.