Monday, 8 November 2010 - Today, a new witness appeared before the judges, presumably Intermediary 316, an individual who collaborated with the OTP in liaising with potential witnesses in Ituri, the northeastern province in the Democratic Republic of Congo. I say "presumably" because, as happened throughout last week, the intermediary has given his evidence entirely in private session. Regardless of the fact that the Prosecution guaranteed at the beginning of the hearing that it would conduct parts of the examination publicly, the public gallery has not heard a word during the day.
On 12 May 2010, the judges hearing the Lubanga trial decided to call two OTP intermediaries - 321 and 316 - to give evidence and address the allegations of misconduct made against them. The decision came after several Defence witnesses told the Court that these individuals bribed former child soldiers into giving false testimony. As a result, Mr. Lubanga's lawyers stated that they were intending to ask the Chamber to dismiss the charges against their client on the grounds of abuse of process.
In its decision, the Chamber also required the disclosure of the identity of a third individual - Intermediary 143 - who, though no allegations of inappropriate behaviour had been made against him, identifying information was necessary for the Defence to conduct "meaningful investigations and to secure a fair trial for the Accused," said the Chamber. The identity of this subject has been the centre of disagreements between the Defence and the Prosecution on disclosure obligations of the latter, and it was the main reason for the Chamber to stay the proceedings on the 8th of July.
Once Intermediary 316 concludes his testimony, the Prosecution will call two investigators as part of its litigation on the abuse of process. It has been said that the OTP representatives, who maintained regular contact with the intermediaries, will speak about this relationship in particular with regards to Intermediary 316. The intention of the Office of the Prosecutor is to refute the accusations of wrongdoing against its collaborators, and to do so, the Office will accompany those testimonies with the evidence of two more rebuttal witness: Witness 38, who was introduced to the OTP by Intermediary 316 and will show the Chamber that this individual never asked him to lie to the Court; and an unnamed witness who will replace Witness 555 - a former child soldier who was scheduled to give evidence on the pressures and intimidations applied by Lubanga's supporters on those who collaborated with the ICC.
As it was revealed on 5 November, the Prosecution had found some details related to Witness 555 that might compromise his credibility, information which should have been disclosed to the Defence. As this was not the case, the Chamber asked the Prosecution to provide them with a summary of any information that led the investigators to question the credibility of this witness, as well as reasons not to disclose this information to the Defence. The Prosecution has until Friday 12 to submit its arguments.
Disclosure obligations, the dilemma continues.
On 5 November, the Defence of Thomas Lubanga reproached once again the Prosecution's attitude towards its disclosure obligations. According to Lead Counsel Catherine Mabille, the Office of the Prosecutor has failed to disclose relevant information not only regarding Intermediary 143 - who continues to be a subject of dispute - but also related to other Prosecution witnesses. She referred to a common behaviour on the part of the Prosecution. "We are not satisfied with the disclosure by the OTP [and...] if possible, we would like to include this issue in our request with regard to the abuse of process," Maitre Mabille told the judges.
The Chamber, on its part, has asked the Defence to outline the details of the unprovided information by the Prosecution, and said it would "reflect on the approach taken by the Office of the Prosecutor in relation to disclosure."
As it was said in Court, the last witness is expected to conclude his testimony by 25 November and afterwards, the Defence will ask the judges to dismiss the case against Thomas Lubanga on the grounds of abuse of process.
