The final witnesses scheduled to give evidence in the Thomas Lubanga war crimes trial are expected to complete testimony by November 25, Presiding Judge Adrian Fulford said today.
The defense will then file an application asking judges to consider dismissing the case. Judge Fulford stated that because the defense had been preparing this application for months, it might be able to file the application shortly after the completion of the testimony.
“This has been a very long time coming so we would hope that your submissions are in very large measure already prepared,” said the judge. “Of course with you needing the opportunity to make appropriate adjustments depending on the evidence that is given by the final outstanding witnesses.”
He suggested that it would be desirable if the defense filed the application before the Christmas break, which commences on December 17. The defense will provide a response tomorrow.
Last January when the defense case opened, lead defense counsel Catherine Mabille said the defense would call witnesses to testify to how intermediaries of the Office of The Prosecutor (OTP) coached and bribed witnesses, and then ask judges to dismiss the case on the grounds of abuse of process.
The defense contends that a fair trial for Mr. Lubanga cannot be ensured when “such a significant part of the trial is based on fabricated evidence.”
All the scheduled defense witnesses have already testified, and the court is currently hearing from some of the OTP intermediaries and investigators implicated in corrupting evidence. The prosecution has called some rebuttal witnesses to testify before the defense files its application.
Although Mr. Lubanga’s trial resumed on Monday last week after a three months’ hiatus, only two witnesses have testified so far. Both of them – an intermediary and an OTP field liaison officer in the Democratic Republic of Congo (DRC) – had given evidence earlier this year. Both have testified with voice and face distortion, with almost their entire testimony given in closed session.
Mr. Lubanga stands accused of conscripting, enlisting, and using child soldiers in armed conflict in the DRC during 2002 and 2003 while he purportedly headed the Union of Congolese Patriots (UPC) and its armed militia.
The defense has stated that if the trial is not dismissed, it will not endeavor to show that there were no minors amongst the ranks of the UPC militia. Instead, it will provide evidence that Mr. Lubanga did not play a part in recruiting or using child soldiers, but when he could worked strenuously to demobilize child fighters from the group.
Meanwhile, prosecutors said today that ‘Witness 38’ who had been expected to testify in the week of November 8 would only be able to travel to The Hague on November 12. This witness had been earlier been scheduled to testify last week, but could not travel because he did not have a passport and visa. Judge Fulford described as “exceedingly bad news” the report that the witness would be delayed further.
This witness, who has previously testified for the prosecution, will give evidence that the intermediary who introduced him to the OTP never asked him to falsify evidence or to lie to the prosecution or the court.
The trial is expected to continue tomorrow.