On November 5, 2010, the Trial Chamber in the case of Thomas Lubanga questioned the prosecution’s late disclosure to the defense of part of an investigator’s internal memorandum, dated February 23, 2006. Full disclosure occurred on November 1, 2010. The prosecution responded that the material withheld was “work product” and not subject to disclosure under ICC Rules. (See related article Prosecution Argues Investigator’s Notes Not Subject to Disclosure, December 8, 2010.)
Mr. Lubanga is on trial at the International Criminal Court (ICC) for recruiting, enlisting, and using child soldiers during the 2002-2003 conflict in the Democratic Republic of Congo (DRC). The last months of the trial have focused on defense allegations of abuse of process by the prosecution, after one witness recanted and accused prosecution intermediaries of coaching and bribing him to give false testimony.
The disputed paragraph concerned an OTP investigator’s negative assessment of the credibility of a prospective witness (‘witness 31’) based on the witness’s failure to provide certain documents. ‘Witness 31’ had already provided the prosecution with substantial documentation of the demobilization of child soldiers, but when he failed to provide additional anticipated documentation, the investigators questioned his credibility in an internal memorandum and decided he should not testify. Five months later, in July 2006, ‘witness 31’ turned over the documents which were entered into evidence. The documents, but not the internal memorandum, were given to the defense prior to ‘witness 31’s’ testimony. The defense wanted it all. Ultimately, the prosecution disclosed the investigator’s memorandum but not before the witness testified. The defense objected, implying the prosecution was guilty of malfeasance. The prosecution countered that the information was “work product” and not subject to disclosure. The argument became part of the defense’s abuse of process case against the prosecution.
The Chamber issued its decision on January 20, 2011, recognizing that the prosecution was justified in withholding the investigator’s negative assessment of the witness’s credibility as “internal work product.” However, the Chamber held that “it is the information and material that led to any relevant evaluations or assessments that, depending on the circumstances, should be provided to the defence. . . For example, in this situation, to the extent that the credibility of witness 31 is in issue in this trial, the circumstances of the delay on his part in providing documents and other material to the prosecution (including, for instance, the requests and the opportunities to do so), which led to the investigators’ decision to cease contact with this witness for some time, may well have constituted information which should have been provided to the defence. The fact that he eventually supplied additional notebooks and other documents to the prosecution does not ‘wipe the slate clean’ – rather, the circumstances relating to the (lengthy) period whilst this material was not forthcoming may constitute disclosable material.”
Regardless, the principles applied by the prosecutor to determine the necessity of disclosure of the investigator’s memorandum were appropriate, the Chamber stated, setting forth categories of legitimate ‘work product:’ “i) all preliminary examination reports; ii) information related to the preparation of a case, such as internal memoranda, legal research, case hypotheses, and investigation or trial strategies; iii) information related to the prosecution’s objectives and techniques of investigation; iv) analyses and conclusions derived from evidence collected by the OTP; v) investigator’s interview notes that are reflected in the witness statements or audio-video recording of the statement; vi) investigator’s subjective opinions or conclusions that are recorded in the investigator’s interview notes; and vii) internal correspondence.”
The defense was not satisfied with the prosecution’s disclosure, however. In a November 5, 2010 email, the defense requested disclosure of information for ‘witness 31’ similar to that ordered for intermediaries 143, 316, and 321 (tables based on the ‘situation contacts management system’) because of his connections with those intermediaries. The witness was introduced to the OTP by intermediary 143, worked closely with intermediary 321, and had contact with eight child soldiers who are relevant to the abuse of process application, according to the defense. They added that “he facilitated meetings between children [REDACTED] and prosecution investigators, and in particular he testified to having set up meetings through social workers, in particular intermediary 321” with three witnesses. “Witness 31 also attended interviews between a number of children and prosecution investigators.”
The Chamber noted that ‘witness 31’ is not in the same position as the intermediaries, but “given his close involvement with individuals who have potential high relevance for this abuse application, and bearing in mind the factors that led to concerns about his credibility, set out above, disclosure of similar tables, based on the ‘situation contacts management system,’ has become necessary, because they are material to the preparation of the defence.” The Chamber ordered that the prosecution provide it with the table for review.
A status conference on the Lubanga case is scheduled for February 17, 2011.