Thomas Lubanga’s war crimes trial is set to resume after judges rejected a defense application, which sought the dismissal of the first case to be tried by the International Criminal Court (ICC).
Mr. Lubanga’s lawyers last December asked judges to throw out the case, claiming that the Office of the Prosecutor (OTP) had abused court process when its intermediaries allegedly bribed and coached witnesses. Judges have since then been considering the defense’s application, which was opposed by the prosecution and legal representatives of victims participating in the trial.
At a status conference today, Presiding Judge Adrian Fulford stated that the defense’s application had been rejected, but he did not say why. A version of the judgement would be made public after all parties to the trial had agreed to the necessary redactions. The judge then asked the defense to indicate when it would be ready to call its witnesses.
Mr. Lubanga’s lead counsel, Catherine Mabille, replied that the defense needed time to discuss the ruling before suggesting when their witnesses would be available. She said the defense was also considering appealing the trial chamber’s decision. She added, “I believe the chamber knows we had a very short time period to analyze the decision that has been handed down, and we would like to inform the chamber that were not able to discuss with our client, and given the possible appeal, we are not in position right now to see whether we are ready” to resume.
Judge Fulford said the defense could still provide tentative arrangements for calling its witnesses, although it was obvious that the defense needed to reflect on the trial chamber’s decision.
Ms. Mabille responded, “The reason we are hesitating is because we have the intention of reassessing the number of witnesses we wish to call before this court…If you ask us when our first witness will come, then we will have to reflect on the basis of the decision that has just been handed down.” It was not made clear during the status conference when the judgement on the abuse of process application was made.
Judge Fulford said that most of the individuals on the list of ten witnesses the defense submitted in February 2010 as those it would call if the abuse of process application was rejected already had passports. They therefore “ought to be able to come to this country relatively quickly,” he said. The judge asked the defense to liaise with the Victims and Witnesses Unit and inform judges this Friday, February 25, whether it would be able to call the witnesses beginning March 7, 2011.
At the opening of the defense case on January 27, 2010, Ms. Mabille stated that the defense would call witnesses to attest to the corruption of evidence by OTP intermediaries. Indeed, the defense called witnesses who talked about the falsification of identity by prosecution witnesses and their parents, including allegedly claiming to have been child soldiers in the Union of Congolese Patriots (UPC). Some of the defense witnesses spoke of prosecution witnesses being bribed and coached by the intermediaries.
Mr. Lubanga, whom the ICC prosecutors allege was the founder of the UPC, is accused of enlisting, conscripting, and using child soldiers in armed conflict during 2002 and 2003. Prosecutors also claim that he was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), which used child soldiers in inter-ethnic fighting in the Democratic Republic of Congo.
As a result of repeated implication of OTP staff in corrupting evidence, judges ordered some of these intermediaries and prosecution investigators to testify. The failure by the prosecution to disclose to the defense the identity of one of its intermediaries prompted judges to order a halt to the trial in July 2010. However, the prosecution subsequently disclosed this individual’s identity, and the appeals chamber ordered the trial to resume the following October.
In her opening statement at the commencement of the defense case, Ms. Mabille said that if the trial continued after the abuse of process application, the defense would not attempt to show that there were no minors amongst the ranks of the FPLC. Instead, the defense would “tender evidence to the effect that Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.”
The defense will also address the question of what Mr. Lubanga’s attitude was regarding the presence of minors amongst the UPC troops. “The defense witnesses shall provide evidence to the effect that Thomas Lubanga during the few months where he did have responsibilities did all he could to demobilize the minors who were present amongst the ranks of the FPLC,” Ms. Mabille said in January 2010. “The witnesses shall also speak of the difficulties in implementing this policy of demobilization.”
During today’s proceedings, prosecutor Manoj Sachdeva said if Mr. Lubanga intended to take the witness stand, the prosecution would like to be informed in advance so that it makes appropriate preparations. However, Judge Fulford pointed out that Mr. Lubanga’s name had not yet appeared on any witness list.