Combative Witness Raises Questions about Witness Preparation at the ICC

Earlier this month a prosecution witness testifying in the trial of Dominic Ongwen at the International Criminal Court (ICC) made headlines when he was cautioned by the judges for his behavior on the witness stand. As a member of the Uganda People’s Defense Force (UPDF), Witness P-003 intercepted radio communications between members of the Lord’s Resistance Army (LRA) during the conflict in northern Uganda, and he was called to The Hague testify about those communications.

However, upon cross-examination Ongwen’s lead defense lawyer, Krispus Ayena Odongo, in an effort to impugn the witness’s credibility, presented a letter in court that alleged the witness acted inappropriately during intercept operations and drew a gun on an intelligence officer working from the same compound. The witness accused the defense lawyer of presenting lies and questioned his personal motives for the questions. At one point the judge asked the witness to abandon his “defensive attitude.”

The next day in court, the witness explained his behavior was due to concerns that he may be punished upon his return to Uganda. Following this remark, prosecution lawyer Benjamin Gumpert read Article 19(1)(c) from the Agreement on the Privileges and Immunities of the ICC, which, briefly summarized, states that witnesses are immune from prosecution with respect to their testimony and that immunity is provided even after their appearance before the court.  Despite this, Witness P-003 continued to be hostile towards Odongo, which resulted in the witness testifying from a separate room, responding to questions via video link.

This same pattern of conduct continued on the witness’s third and final day on the stand, giving rise to Odongo calling his behavior “unacceptable.”  The witness completed his testimony from a separate room.

Throughout the testimony of Witness P-003, the trial chamber took extended breaks and had to take portions of the hearing unexpectedly into private session. It appears as though the witness was extraordinarily unprepared to handle questions from the defense and may have been genuinely afraid being prosecuted for accusations made against him in court. Could any of this been prevented or mitigated?

The ICC has allowed for two different types of engagement with witnesses immediately in advance of their testimony. Witness familiarization describes the process in which the Victim and Witnesses Unit (VWU) can provide support witnesses before they testify. This involves assisting the witness to understand the court’s proceedings, reminding them about their obligation to tell the truth, allowing a witness to review prior statements given to investigators, discussing security concerns, and providing a walk-through of the courtroom.

The other type of engagement is witness preparation, also known as witness proofing. It has been defined as “a meeting between a witness and the party calling that witness, taking place shortly before the witness’s testimony, for the purpose of discussing matters relating to the witness’s testimony.” In addition to allowing the witness to review prior statements, a calling party can discuss with the witness questions they will ask during direct examination and ask the witness if they have any additional information pertinent to the case at hand.

Every trial chamber to-date has adopted a witness familiarization protocol. The practice of witness preparation, however, has been a controversial issue since the court’s first trial of Thomas Lubanga. Despite precedents from the ad hoc tribunals, as well as the Special Court for Sierra Leone, Trial Chamber I presiding over the case held that witness preparation could lead to a “distortion of the truth” and result in testimony that lacks spontaneity. Furthermore, judges were not convinced that witness preparation could assist in efficiency of the proceedings, as the prosecution claimed.

The trial chambers presiding over the case of Mathieu Ngudjolo and Germain Katanga adopted a protocol similar to the Lubanga trial. In the cases of Jean-Pierre Bemba and Laurent Gbagbo and Charles Blé Goudé chambers denied requests from both defense and prosecution lawyers to allow witness preparation protocols to be adopted using reasoning similar to that of the Trial Chamber I in the Lubanga case.

In the Bemba et al. case, the first ICC trial based on charges relating to Article 70 of the Rome Statute, judges also rejected the prosecution’s request for a witness preparation protocol. Most recently, Trial Chamber VIII, which presided over the brief trial of Ahmad Al Faqi Al Mahdi, adopted a witness familiarization protocol. The chamber said there wasno useful purpose for permitting any witness preparation” due to the limited scope and duration of the trial. (Al Mahdi pleaded guilty in a trial in which three witnesses were called to testify.)

Chambers have also taken a different approach. Trial Chamber V in the trial of William Ruto and Joshua Arap Sang was the first to do so. In approving the prosecution request to conduct witness preparation, the judges found that if done properly, “witness preparation is… likely to enhance the efficiency, fairness and expeditiousness” of the trial. The chamber found that the witness familiarization protocol, which limits the calling party to a “ten minute ‘courtesy meeting’” with their witness, does little to ease the stress and anxiety a witness may face, and proper witness preparation would help witnesses understand the complex issues that may come up in court, including the court’s “systems of questioning and cross-examination.”

In the trial of Bosco Ntaganda, the judges followed the jurisprudence from Trial Chamber V and also adopted a protocol on witness preparation, citing many of the same reasons for allowing the practice.

In the case of Ongwen, the prosecution requested that Trial Chamber IX adopt a witness preparation protocol, arguing that the amount of time since the alleged crimes occurred, complexity of the issues in the case (Ongwen is facing 70 counts of war crimes and crimes against humanity), and the well-being of vulnerable witnesses will be served by such a protocol.  The prosecution even cited a specific example from the Ruto and Sang trial in which a witness was withdrawn when it was determined during a witness preparation session their evidence was unreliable. This, according to the prosecution, saved the court “considerable time and resources.”

The defense opposed the request for a witness preparation protocol, and the trial chamber, aligning itself with the jurisprudence handed down from the Lubanga trial chamber, rejected the prosecution’s request. According to the judges, there is an “inherent risk of approaching a rehearsal for the witness’s testimony” when conducting witness preparation and considers the VWU “better placed” to assist witnesses as they prepare for testimony.

In response to the prosecution’s arguments, judges found that letting a witness review his or her prior statements helps resolve the gap in time between the alleged crimes and when the testimony takes place. The trial chamber also said the complexity of the case does not justify witness preparation because witnesses “testify only to the extent of their personal knowledge.” Lastly, judges noted the VWU is capable of addressing any concerns of vulnerable witnesses during the familiarization process.

The prosecution’s request for leave to appeal this decision was also rejected by the trial chamber.

Thus, when Witness P-003 arrived in The Hague before his testimony, he was subject to the witness familiarization process conducted by the VWU. According to the protocol adopted by the court, attached to the decision as Annex 1, the witness and the calling party are allowed to only meet once “only for the purposes of acquainting themselves.” Although the witness could reread his prior statement given to investigators in the presence of VWU staff, the unit staff cannot answer “any legal or factual questions in relation to the statement.” There would have been no opportunity for the witness to ask what questions in relation to his statement or be prepared for what cross-examination may look like.

Regarding the concerns Witness P-003 had about self-incrimination, according to the witness familiarization protocol adopted in the Ongwen trial, “it is the responsibility of the entity calling the witness to identify witnesses who may potentially incriminate themselves.” In this matter, the prosecution would have had to be aware of any incriminating statement the witness could make, alert VWU, and inform the witness of their right to seek independent legal advice. It is unclear in this case if the prosecution was not aware of the risk of self-incrimination or if the witness rejected legal advice that may have eased his concerns.

It is hard to say whether adopting a protocol on witness preparation would have prevented the disruption of the trial due to the anxiety of the witness about self-incrimination and his resulting combativeness in this situation. It is not unusual at the ICC for a witness to become defensive when being cross-examined, and lawyers know how to handle such a situation. However, the behavior of Witness P-003 went beyond this norm. At the very least, this should prompt the court to see if there is anything it needs to change with regards to witness familiarization, otherwise occurrence like this are likely to continue, wasting precious time and distracting us from the real task at hand – ensuring justice for victims is carried out in a fair, transparent, and efficient manner.