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Court Orders Disclosure of Victims’ Information

As the public awaits news of when the trial of Thomas Lubanga will resume, the Trial Chamber has issued several decisions on pending applications from the parties. In the most recent one, the defense requested disclosure of information from certain victims’ application forms in which they sought to participate in the proceedings. The victims testified at trial in January 2010 for the prosecution as Dieudonne Tonyfwa Urochi and Jean Paul Bijijjo Chonga respectively. In April, two defense witnesses claimed they were Mr. Urochi and Mr. Chonga and the dual status witnesses in January were impostors.

This controversy led to the near derailing of the proceedings against Mr. Lubanga in July 2010, when the prosecution refused the court’s order to disclose the identity of an intermediary. Eventually, the name was disclosed and the trial resumed but focused on whether the prosecution had coached witnesses and fabricated evidence as the defense contends.

Thomas Lubanga, former rebel leader in the Democratic Republic of Congo, is on trial for the recruitment, conscription and use of children under the age of 15 years in armed conflict during 2002 and 2003. He has denied the charges.

Attempting to determine who the real Mr. Urochi and Mr. Chonga are, the defense asked the court to order disclosure of information on the application forms that the court had formerly redacted (kept confidential). The defense sought disclosure in six general areas: “i) the individuals or organizations they had spoken to about their security concerns; ii) the name of the individual who, in each instance, witnessed the signature on the form; iii) the names of those from whom relevant information was received; iv) the names of those who assisted in filling out the form; v) other victims referred to in the application forms; and vi) in one instance, the name of an individual a victim tried to assist.”

The prosecution did not oppose the request but sought more detail on what was wanted. The principal counsel for the Office of Public Counsel for Victims (OPCV) argued that disclosure should be limited and should only include: i) participation forms for victims 225 and 229, and ii) the names already disclosed by their legal representative. The OPCV also argued against disclosure of identifying information relating to certain nongovernmental organizations (NGOs) and asked that the chamber provide advance notice if it decided disclosure was appropriate given that the security situation in Ituri, in eastern Congo, where many NGOs are located, remains volatile.

Joseph Keta, the legal representative for victims 225 and 229, objected to disclosure of the names of intermediaries and NGOs on his clients’ application forms. He agreed to disclosure of the names of people witnessing the signatures.

In their testimony last January, 225 and 229 identified themselves as former UPC child soldiers. Witness 225 recounted how he was abducted by UPC militiamen, was tortured at a training camp, and watched his friends be killed in battle “like flies.” Meanwhile, Witness 229 described torture at a UPC camp and claimed commanders ordered him to find for them young beautiful girls and to take militiamen to the homes of rich people in his village, which they then robbed. These two are among the three dual status witnesses, or those who are victims and witnesses, in the Lubanga trial. They testified with face and voice distortion. The defense witnesses who claimed to be the true Dieudonne Tonyfwa Urochi and Jean Paul Bijijjo Chonga testified via video link from DRC, but their faces were visible on public screens at the court at The Hague.

Mr. Lubanga’s defense asserted that the situation of each person whose identity is sought be examined individually, taking into consideration their circumstances and the local situation. They also maintained that there was insufficient justification for the redactions and that the NGOs are already well known.

The Registry weighed in by noting that it generally opposes disclosure of intermediaries’ and victims’ identities. Intermediaries have a role in other cases and disclosure heightens the security risk, said the Registry. The Registry had no objection to disclosure where identities had already been revealed in court, provided that the court first sought the views of victims’ legal representatives. Finally, the Registry argued that, if the court orders disclosure, it should only occur: (1) after consent from the intermediaries; (2) with restrictions on the use of the information; (3) if the defense is prohibited from disclosing the names of intermediaries or their role vis a vis the court to others.

In reaching its decision, the Chamber pointed out its dual and sometimes conflicting obligations to protect the safety of victims and witnesses and to assure the accused receives a fair trial. In this situation, the Chamber found that the accused’s right to a fair trial required disclosure of the requested identities which “may well assist the defence in investigating the (true) identity of the victims and witnesses linked to this application.” The Chamber noted that the information sought had, for the most part, already been disclosed at trial and was therefore not likely to jeopardize the safety of those whose identity was to be revealed. Where identities had not yet been revealed, the Chamber ordered that the Victims Participation and Reparation Section (VPRS) contact them to learn their views on their identities being disclosed to the defense. The VPRS is to report back to the court “as soon as possible.”

The status conference scheduled for February 17 has been canceled. No new date has been set as of this writing.