On December 3, 2010, Trial Chamber I issued an order on three prosecution applications for nondisclosure of information in the trial of Thomas Lubanga for war crimes. The defense filed objections to some, but not all of the nondisclosure requests.
Issues surrounding disclosure came to the fore following ‘witness 15’s’ June 2009 in-court revelation that he had given the prosecution a false name and false information about his background as a child soldier. The defense requested disclosure of all documents in the prosecution’s possession relating to defense witnesses.
The statute and rules of the International Criminal Court (ICC) mandate prosecution disclosure to the defense of evidence that tends to show the innocence of the accused, to mitigate guilt, or which may affect the credibility of prosecution evidence, as well as items material to the preparation of the defense, intended for use by the prosecutor as evidence, or obtained from or belonging to the accused.
The rules allow the prosecution to seek court sanction to withhold otherwise disclosable information for specified reasons. For example, the prosecution’s ‘work product’ (internal memoranda, investigator’s notes, notes on strategy) and where disclosure may cause harm to a victim or witness.
Of the 988 documents the prosecution identified for disclosure to the defense, it sought redaction of information from 83. The defense did not oppose redactions relating to locations of witness interviews and accommodations, whereabouts of witnesses in the ICC Protection Program (ICCPP), or contact information from and whereabouts of witnesses and others at risk on account of activities of the court.
However, the defense contested the prosecution’s application for redaction of the identities of intermediaries and prosecution sources and leads, identification of ICC staff, identification and witness codes for witnesses and members of their families or guardians, and identities of irrelevant individuals or bodies.
In deciding what otherwise disclosable information may be kept confidential, the Chamber weighed the interests of the prosecution, witnesses, victims, the accused, and the Tribunal. The prosecution has an interest in preventing disclosure of material that might hinder ongoing or future investigations in the Democratic Republic of Congo (DRC). Victims, witnesses, and their families may face retaliation if their identities are known. On the other hand, the defense needs to have access to witnesses and others who may shed light on relevant issues, such as alleged abuse of process by the prosecution or its witnesses. The Chamber is responsible to conduct the trial in a fair and expeditious manner “with full respect for the rights of the accused and due regard for the protection of victims and witnesses.” The Appeals Chamber has ruled that the Trial Chamber’s responsibility includes “persons at risk on account of the activities of the Court,” clarifying that the Chamber must consider the negative effects of disclosure on third parties who do not appear in court.
In seeking to accommodate the varying interests, the Chamber set out what it must consider in deciding whether to grant the party’s request for nondisclosure of material otherwise required to be disclosed: (1) whether disclosure is irrelevant to any issue in the case and whether redaction would make the document unintelligible or unusable; (2) whether redactions are necessary to ensure the continued safety and security of those concerned; (3) whether nondisclosure will cause any prejudice to the accused; (4) whether lesser protective measures are feasible.
The Chamber applied the above considerations to the contested issues in light of the abuse of process allegations. Noting that it had in the past authorized nondisclosure of the identity of intermediaries, but ordered that the prosecution reveal the identity of ‘intermediary 143’ following accusations that he was involved in abuse of process, the Chamber nevertheless granted the prosecution’s request to withhold the identity of ‘intermediary 273’ because “the information provided by the prosecution regarding this individual does not appear to have any significance in the present case.”
Though the Chamber had permitted the prosecution to withhold the identities of ICC staff who worked on the case, the issue of abuse of process make the identities relevant to the defence case, “given the suggestion that witnesses have been improperly influenced and that expense related monies or benefits have been misused.” The Chamber ordered confidential disclosure of identities to the defense, but not contact details to insure the safety of staff and the prosecution’s ability to conduct ongoing and future investigations.
The prosecution sought nondisclosure of identities and identifying information for three non-trial witnesses, family members and guardians of five witnesses, and identities and travel destinations of ‘intermediary 316’s’ family members. The Chamber ruled that information concerning ‘intermediary 316’s’ family is irrelevant and need not be disclosed. Where the Chamber ordered disclosure because the identities of previously anonymous witnesses have become relevant to the case in light of the abuse of process allegation, the Chamber also took steps to protect these individuals. It directed the prosecution to liaise with the Victim & Witnesses Unit (VWU) to put into place any necessary protective measures, and ordered that the “information is to be disclosed confidentially only to the defence (i.e. counsel, their assistants and the ‘resource person’).”
The Chamber further ordered disclosure of six expense related documents for ‘intermediary 316′ and ‘intermediary 320’, but with the protective measures set out in the above paragraph.
Thomas Lubanga is a former rebel leader and is accused of conscripting, enlisting, and using child soldiers in DRC from 2002 to 2003. He has been on trial in The Hague since January 2009.