Wednesday 7 July 2010- Judges order OTP Intermediary´s Identity to Be Disclosed to Thomas Lubanga
The matter of the still unknown identity of Intermediary 143 interrupts the proceedings today. It is such a controversial issue that the Trial Chamber needs to hear today's entire session before a final decision is reached: the material that discloses the identity of Intermediary 143 has to be provided to the Defence team.
At around 10.30 in the morning, the judges make a decision. Whereas the Prosecution opposes the disclosure of any identifying information, alleging security concerns, the Defence regards 143´s identity indispensable to continue questioning Intermediary 321 regarding the abuse of process application. According to various Defence witnesses, the intermediaries who collaborated with the Office of the Prosecutor in facilitating contact with former child soldiers coerced the children into giving false testimony before the Court.
In its decision regarding the intermediaries on 12 May 2010, the Chamber observed that the disclosure of 143´s identity was necessary for the Defence to conduct its investigations in the DRC and ordered that all necessary protective measures had to be implemented prior to the disclosure of any identifying information. Following that order, the Victims and Witnesses Unit assessed the security situation of the intermediary and offered him a protective plan. "He accepted, but, for reasons not explored, the implementation [of this plan] was delayed [...] in order to match the requests made by 143," explains Judge Fulford. The execution of the protective scheme began in the second week of July; at the very last moment, Intermediary 143 questioned the arrangements put in place. As a result, the current position of 143 is that the protective measures offered to him and his resettlement have not yet been implemented, and therefore the decision to disclose his identity must be reexamined.
The judges also considered an alternative, suggested by the Prosecution, of continuing to question 321 while placing the issues concerning 143 on hold until the security measures were applied. Instead, they reach an equitable decision: the disclosure of his identity will be limited to a "restrictive group of people," - the Accused and the Defence resource person in DRC - and, in addition, the material will only be used for the purpose of the Defence Councel´s questioning and without investigative purposes.
Soon after, the hearing adjourns for the Defence to receive the identifying information. "When do you think you will be ready to recommence your questioning?" Judge Fulford asks Defence Counsel Jean Marie Biju-Duval. "If disclosure occurs immediately, early in the afternoon," answers the lawyer.
However, the participants come back to the courtroom and no disclosure has occurred. In an email sent to the Chamber during the lunch break, the Prosecution asked the judges to reconsider their position, saying that Prosecution Coordinator, Sara Criscitelli, would explain the Prosecution's observations.
Now in court, Ms. Criscitelli argues that the Chamber´s decision places Intermediary 143 at risk and asks for the disclosure to be postponed until the protective measures are implemented. "Our primary obligation is to protect the individuals who collaborate with this Court. We are concerned about the security of a person. There are risks in Bunia if the community considers someone is a traitor. This is the real life on the ground," says Criscitelli.
"Is the Prosecution saying that you don't trust the Defence?" asks Judge Fulford. "You are funding your observations on the risk of people to be killed in Bunia if they are considered traitors. You can only make that submission if you assume that the Defence is going to breach the Chamber´s order.
The efforts made by Ms. Criscitelli are dismissed by the Chamber, which believes that the order made is "appropriate and fully satisfies the protection of this individual." Judge Fulford concludes, "We order the disclosure of [the identifying] information by 4.30 this afternoon. We will sit again at 9.30 tomorrow morning and Mr. Biju-Duval will recommence his examination."
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