All testimony heard by the Lubanga trial this week was given in closed session following a declaration by defense attorneys that they would not be able to cross-examine the witness in public session.
During the week, judges also stated that the final witnesses scheduled to give evidence in the war crimes trial were expected to complete testimony by November 25. The defense would then file an application by December 12, asking judges to consider dismissing the case.
As was the case last week, this week was equally dogged by the unavailability of witnesses. Only one witness – ‘intermediary 321’ – gave evidence from Monday to Thursday, while on Friday a status conference was held. One witness, who had been expected to testify this week, again failed to travel to The Hague because of prolonged delays to securing a passport and visa.
Last July, ‘intermediary 321’ had testified for two days when trial judges suspended the trial after prosecutors failed to disclose to Mr. Lubanga’s defense the identity of another intermediary. 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 Monday’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. He explained that the witness would be questioned about several unprotected names “and it would be artificial for us to be giving pseudo names”. While the defense attorney had stated that he would try to do some cross-examination of the witness in public session, he did not get to do any questioning in open court.
At the conclusion of Thursday’s hearing, Presiding Judge Adrian Fulford stated that because nearly the whole of the week’s proceedings had been conducted in private session, “efforts should be taken to publish a redacted version of this witness’s testimony.”
Defense witnesses have in the past implicated ‘intermediary 321’ in impropriety, including coaching and bribing witnesses to allegedly give testimony to the court that they had served as child soldiers in the militia that ICC prosecutors allege Mr. Lubanga commanded during 2002 and 2003.
Meanwhile, prosecutors told court 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.
Then, on Thursday, the trial was told that an individual the prosecution planned to call as a rebuttal witness would not be taking the witness stand after all. This individual had stated in interviews with prosecution officials that he was a former child soldier in the Union of Congolese Patriots (UPC), the group Mr. Lubanga is alleged to have led.
According to prosecutors, this person, who goes by the pseudonym ‘witness 555’ would have given evidence about the alleged climate of fear and intimidation in Bunia in eastern Congo amongst individuals who were alleged to have cooperated with the ICC.
The defense for Mr. Lubanga, who is being tried over the recruitment, conscription, and use child soldiers, has stated that ‘witness 555’ lied to court about his alleged military service.
“The defense contends that members of [witness] 555’s family and relevant school documents reveal that he was not in the army at the relevant time,” Judge Fulford said. Besides, he added, “the defense submits that this is a false witness and that the prosecution failed to carry out proper checks to ensure they would be calling a witness of truth.”
Judges ruled that the prosecution should reveal all the details of communication between the OTP and ‘witness 555’.
During the week, the defense complained to judges that the prosecution had failed to honor various disclosure obligations. “We are not satisfied with the disclosure by the OTP of the elements for the request on abuse of process,” stated lead defense counsel Catherine Mabille. “If possible we would like to include this issue in our request with regard to abuse of process.”
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.”
At the opening of the defense case last January, lead defense counsel Ms. Mabille said the defense would call witnesses to testify to how intermediaries of the 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.” Ms. Mabille on Thursday confirmed that they would file this application by December 12.
The trial resumes on Monday next week.