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Lubanga Complains About Prosecution’s Late Disclosure Of Documents

Today, Thomas Lubanga’s defense complained to International Criminal Court (ICC) judges that prosecutors were not honoring their disclosure obligations regarding certain documents in their possession, which they planned to use against the accused.

Specifically, defense lawyer Jean-Marie Biju-Duval pointed out that the Office of the Prosecutor (OTP) yesterday disclosed to the defense three documents that seemed “to demonstrate that the prosecutor might very well have archives from the UPC [Union of Congolese Patriots] which he has not disclosed.”

“We heard the witness yesterday answer questions about minutes of the [UPC] executive committee and several documents, which were part of the UPC archive that have not been disclosed…in terms of the prosecutor’s obligations to disclose all the documents from the UPC’s archive,” stated Mr. Biju-Duval.

He questioned the stance taken by the former UN Military Observer Mission in Congo (MONUC) regarding UPC documents in its possession. He asked the prosecution to declare whether MONUC had given all the UPC documents it had to the OTP or had kept some.

In response, the prosecution’s Manoj Sachdeva stated that of the three documents Mr. Biju-Duval said were disclosed yesterday, one had been disclosed to the defense much earlier. What was provided to the defense this week was “a better, more readable copy” of the same document. He explained that the two other documents had become relevant in view of this week’s testimony by Bede Djokaba Lambi Longa, who was the National Deputy Secretary of Customary Affairs in the UPC at the time the crimes Mr. Lubanga is being tried for were allegedly committed.

Mr. Longa has testified that Mr. Lubanga issued orders for the demobilization of child soldiers in UPC’s armed wing. Besides, said the witness, the UPC leader decreed that no more child soldiers should be recruited. Mr. Lubanga faces the war crimes of conscripting, enlisting, and using child soldiers in armed conflict in the Democratic Republic of Congo (DRC) during 2002 and 2003.

At the start of the day’s proceedings, Judge Fulford remarked, “I understand our old friend Article 54 (3) (e) has returned,” in reference to the provision in the Rome Statute, which is the treaty that established the ICC. This article permits the ICC Prosecutor to exceptionally receive information or documents on the condition of confidentiality but bars the use of this material at trial. The material only has to be used for generating new evidence.

Back in June 2008, trial judges imposed a stay of proceedings in the Lubanga case after determining that the prosecution had incorrectly used Article 54 (3) (e). The judges said at the time that as a result of this misuse, a significant body of exculpatory evidence had not been disclosed to Mr. Lubanga, thereby improperly inhibiting the opportunities for him to prepare his defense. The stay was lifted after prosecutors allowed to effect requisite disclosures after the sources of the documents – mainly United Nations bodies – had given their consent.

Judges today asked prosecutors to declare whether MONUC had provided to them the full UPC archive or part of it, what the basis has been for the OTP’s access to the archive, and whether 54 (3) (e) had been invoked in regard to the archives. Judges also directed the OTP to explain what the attitude of the prosecution has been regarding disclosure to the defense of these items and why some of these documents are only being disclosed now. The OTP promised to offer its explanations tomorrow.

While concluding his testimony, Mr. Longa today described how MONUC staff broke into the UPC headquarters, as well as the homes of UPC officials, and confiscated documents. He maintained that Mr. Lubanga actively worked to demobilize child soldiers from UPC.

Questioned by Mr. Sachdeva about videos shown in court in which UPC officials talked about the need for more “children” to join UPC and documents in which UPC officials referred to some form of encouragement being given to “children” in the armed group, the witness said the term ‘children’ was used to refer to armed fighters in the UPC without regard to their ages. He added that up to this day, the term ‘children’ is used by the Congolese national army to refer to recruits. Officers also used it in reference to junior soldiers irrespective of the age of the low rank soldiers.

After concluding his testimony, Mr. Longa told judges that the Congolese justice minister had him and three other individuals he travelled with from Congo to The Hague filmed as they left a Congolese airport while in handcuffs. The four individuals have for years been in a Congolese jail awaiting trial over crimes related to their involvement with armed groups such as the UPC. The witness said he heard that the footage was shown on Congolese national television.

“I did not feel sufficiently protected when I arrived [in The Hague]. And now, when I go home, I am starting to wonder how the ICC will be able to protect me,” said Mr. Longa.

Judges promised to investigate whether the witness was mistreated on his way to give testimony at the court. They would inform him of the conclusions of their inquiry. However, the judges declared that they were unable to say anything about Mr. Longa’s safety once he returned to the DRC.

Meanwhile, the next defense witness, Michel Angayika Baba, appeared briefly this afternoon.   Mr. Baba served as private secretary to Mr. Lubanga while he was the UPC president . He stated that when Mr. Lubanga took control of the UPC, he had declared that he did not want children to be recruited. Mr. Baba’s testimony will continue tomorrow.