Thursday, 25 November 2010 - The Prosecution calls a new witness to refute Defence allegations of Intermediary 316's misconduct. Lubanga's lawyers maintain that the individual who helped the Office of the Prosecutor contact potential witnesses induced those witnesses to fabricate their testimonies. Today, Witness 38, a former child soldier in the UPC allegedly led by Thomas Lubanga, comes back to the Hague to confirm that he told the truth.
Witness 38 is called back by the Prosecution with a very concrete assignment: to answer the question of whether Intermediary 316 bribed him to lie to the OTP investigators and the Court. "I only talked about what I knew and did. I did not lie. I have no interest in that. It is a question of morality. Lie is a sin," the former child soldier says.
As it was revealed, Intermediary 316 introduced Witness 38 to the investigators and then facilitated the meetings between them. The intermediary was in charge of dealing with passports and bringing potential witnesses to locations for interviews. As Witness 38 confirms, the first meeting with the OTP took place in January 2006. "It was on a Sunday. I remember Intermediary 316 came to my house. I was studying. He introduced himself to me. I showed him my demobilisation card [which proved he had been in the army]. [The intermediary] called the ICC vehicle and we went to Dromo camp. He introduced me to the investigators," explains the witness.
The former child soldier tells the Court that after the first meeting with OTP investigators, there were further encounters, which is something the Defence wants to explore. "Do you recall having said that you had some notes on the questions that were put to you?" asks Defence Counsel Marc Desalliers. "Were these notes taken by yourself?" The former child soldier explains that he wrote down notes while he was doing his military training. He says that the children were given notebooks to write down "things" - presumably military instructions, names, and weapons. "But I lost that notebook," the witness tells the Court.
"The notes you had in the first interview in 2006, did you write them down during the events in 2002 and 2003?" asks Mr. Desalliers. The Defence is attempting to diminish the witness's credibility by suggesting that somebody else could have dictated those notes. "No, these notes are not in my possession anymore," the witness says, referring to the records taken in 2002 and 2003 during his stay in the army. "The investigators asked me about the names of the commanders. On that occasion, I wrote [the names] down, in order to not forget matters. The notebook I spoke about with the investigator was not found."
The Defence also examines the encounters between the OTP intermediary and Witness 38. Mr. Desalliers refers to a particular episode in which the former child soldier spent more than an hour at 316's home following an interview with investigators in Kinshasa. As the Defence Counsel explains, the intermediary had to take some photos of the potential witness. "If 316 only took five pictures of you, what did you do the rest of the time?" asks Mr. Desalliers. "We stayed at home, watching the tv. His wife was also there," Witness 38 recounts. "We didn't speak about anything else. We were back from Kinshasa; everything was already said."
Another line to explore is whether or not the OTP witnesses received money in exchange for testifying against Thomas Lubanga. To reach this conclusion, the Defence looked into the payments Witness 38 received from the Court. Desalliers reads a section of the witness's statement: " From May 2007 to February 2009, I was under the protection program of the court. I received money for my food and my accommodation. The Court paid the owner directly." Witness 38 confirms his own words. During that period, the ICC paid his medical expenses, food, accommodation and university fees. "[But] I didn't receive any money without signing a document," he stipulates.
"I am going to make a simple suggestion to the witness," Mr. Desalliers states. "If I were to suggest to you that Intermediary 316 and your relative - who collaborated with him - have induced you to lie, what would you say to that suggestion?" At this moment, a redaction on confidential information is imposed and the public misses the answer. Continuous disruptions to the child soldier's testimony makes it difficult to connect his story.
Intermediary 316 testified on 9 November and denied all the accusations of bribery against him. "I am shocked, very shocked at the many lies and the use of forgeries in regards to me," said the witness, referring to the allegations made by several Defence witnesses. Witness 16, an alleged former child soldier in Mr. Lubanga's UPC, testified that he planned with Intermediary 316 to lie to the OTP investigators. "The fib was to say that Thomas Lubanga had enrolled children in the army and I myself was amongst them," he said.
This alleged corruption of evidence forms the Defence's request to dismiss the case on the grounds of abuse of process.
Abuse of process application
The judges have set a deadline for submissions on the abuse of process litigation. The Defence had requested additional time to submit its filings until the Prosecution's rebuttal witness - 598 - testifies. Witness 598 is supposed to shed light on the alleged threats in Bunia - the stronghold of Thomas Lubanga - against people who collaborated with the ICC. The judges rejected the Defence's argument, finding that 598's testimony won't add reveal new information. As a result, the Defence is ordered to submit its application by 10 December.
The Prosecution has also requested an extension to file its submissions. According to the OTP, the Defence has widened its application by including an alleged failure to comply with the obligation to investigate exculpatory evidence on the part of the Prosecution. "With reluctance, we accept the Prosecution's request," says Presiding Judge Fulford. The OTP will submit its conclusions on 31 December. "This is a final, unbreakable deadline," Fulford stresses.
