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Why ICC Prosecutor Did Not Charge Intermediaries Over Witness Tampering

The Office of the Prosecutor (OTP) at the International Criminal Court (ICC) did not initiate investigations or prosecutions against three intermediaries accused of coaching and corruptly influencing witnesses during the trial of Thomas Lubanga.

The OTP also did not take any action against three individuals who conspired and purportedly stole identities in order to participate as victims in the trial at the court based in The Hague.

According to prosecutor Fatou Bensouda, investigating or prosecuting the intermediaries could “have no effect on the conviction rendered by the Trial Chamber against Mr. Lubanga” because the judges based their verdict on evidence provided by witnesses other those who had contact with the intermediaries.

Ms. Bensouda made these explanations in response to a March 3, 2014 request by Mr. Lubanga’s lawyers, who asked judges to order the prosecutor to indicate the actions taken against the six individuals and to disclose all evidence collected during investigations against them. The request was in support of Mr. Lubanga’s ongoing appeal against conviction for the recruitment and use of child soldiers in active combat and the 14-year jail sentence handed to him. The alleged crimes took place during a conflict in the Democratic Republic of the Congo during 2002 and 2003.

During the trial, the chamber heard that some intermediaries coached prosecution witnesses. When they testified in June and November 2010, intermediaries 321 and 316 denied that they corruptly influenced witnesses.

Also during the proceedings, defense witnesses Thonifwa Uroci Dieudonné and Jean-Paul Bedijo Tchonga stated that they were former fighters in the Union of Congolese Patriots (UPC), the group that was led by Mr. Lubanga. They testified that their identities were stolen by individuals who were participating in the trial.

In their March 2012 decision convicting Mr. Lubanga, trial judges found that intermediaries 143, 316, and 321 may have coached witnesses to give false testimony before the court.

Furthermore, trial judges concluded that “there is a real possibility that victims a/0229/06 and a/0225/06 (at the instigation or with the encouragement of a/0270/07) stole the identities of Thonifwa Uroci Dieudonné and Jean-Paul Bedijo Tchonga in order to obtain the benefits they expected to receive as victims participating in these proceedings.”

The trial judges also determined that all but one of the 11 alleged former child soldiers who were witnesses for the prosecution gave contradictory evidence concerning either their ages, school attendance, the identity of family members, or the circumstances of their recruitment. Their evidence was dismissed, and nine of them lost their status of victims participating in the trial.

Finally, the chamber presided over by Judge Adrian Fulford communicated to the prosecutor that they had found that the three intermediaries “may have persuaded, encouraged, or assisted witnesses to give false evidence.”

In their latest request, Mr. Lubanga’s lawyers argued that they were “prohibited” from pursuing their own investigations against the suspects as these investigations fell under the exclusive power of the prosecutor. Furthermore, they argued, the result of investigations into the conduct of the intermediaries would have aided the accused’s defense in casting doubt on the reliability of statements made by prosecution witnesses.

The prosecutor responded that trial judges did not order the conduct of investigations against the three intermediaries. She stated that following the conviction decision, an independent consultant was hired to examine, among other documents, evidence and transcripts of witness testimonies and advise whether further investigations into their conduct were necessary. The scope of the independent consultant’s work was “confined to evidence already collected.”

It was on the basis of the independent consultant’s report that no further action was taken against the intermediaries, said Ms. Bensouda.

The prosecutor also explained that the trial chamber did not direct the OTP to examine whether the victims’ actions constituted crimes and that because Mr. Lubanga’s lawyers did not subsequently provide any information regarding their alleged criminal activity, she examined the available information and decided not to pursue the matter any further.

She said the defense’s request for information was moot, given that “there was no evidence” against the six individuals for her to disclose.

In a separate ongoing case against Jean-Pierre Bemba at the ICC, prosecutors have investigated and brought charges of witness coaching and bribery against the accused, two of his former lawyers, and two aides.

Appeals judges have ruled that the prosecution’s responses satisfy the defense request for information in that the prosecutor “clearly indicated” to Mr. Lubanga what actions were taken with regards to the victims and intermediaries. “Based on the Prosecutor’s Response, the Appeals Chamber is satisfied that there is no additional evidence to be disclosed to Mr Lubanga,” said the judges in a June 17, 2014 ruling.