Monday, 11 October 2010 - After the Appeals Chamber reversed the decisions to stay the proceedings and to release Thomas Lubanga on Friday, today Trial Chamber I set the new agenda. As part of its litigation on the abuse of process, the Office of the Prosecution will call seven witnesses, including two investigators and one intermediary to refute Defence allegations of misconduct. According to Lubanga's lawyers, the intermediaries who collaborated with the OTP bribed witnesses into giving false testimony.
The session starts and Presiding Judge Fulford addresses the Prosecution right away. "The stay is now lifted, so the first item is to establish when we can start again hearing evidence," he says, and then informs the audience that a meeting between the Prosecution and the Victims and Witness Unit has taken place in order to set the date to recommence the trial.
"Witness 321 and Witness 581 are ready to testify," says Prosecution Trial Attorney, Manoj Sachdeva; but in the case of the Witness 321, an OTP intermediary, prior to the resumption of his testimony, he needs to review the content of his evidence as three months has passed since he appeared in court. Witness 321's evidence was suspended on 7 July when the judges ordered the disclosure of the identity of Intermediary 143 to the Defence. According to Lubanga's lawyers, this information was essential to conduct some investigations and cross-examine Witness 321. The Prosecution did not comply with the Chamber's orders, so the judges imposed an "unconditional" stay of proceedings and decreed the release of the accused.
On 8 October, the Defence received the identity of intermediary 143. However, Lubanga's lawyers did not seem to be happy with this disclosure. "We have two observations to make, your Honour," says the Lead Counsel, Catherine Mabille. "The disclosure is not sufficient, and we will need some time in order to conduct an investigation into 143 and start our cross-examination." In the Prosecution's opinion, the disclosure of the intermediary's identity is enough for the Defence to undertake investigations and it is consistent with the Chamber's orders on 12 May 2010. Manoj Sachdeva reminds the participants that no allegations have been made against Intermediary 143 and therefore "the extend of disclosure is not as extensive as the Defense believes."
Further disagreements between both parties can impose more unnecessary delays, something that Judge Fulford desperately wants to avoid. "It is critical to resolve this as soon as possible," he says. "Approximately how long are you asking for to conduct investigations into 143?" he asks Maitre Mabille. "I believe from the day we receive the full disclosure, we will need 10 days," answers the Counsel. The judge encourages both parties to hold a "sensible conversation" to see whether an agreement can be reached; if not, the Chamber will sit on Wednesday at 14.00 to listen to arguments before ruling.
To check when the witnesses can be brought to The Hague - Witness 321, Witness 555 and Intermediary 316 - Judge Fulford now speaks to a representative of the Victims and Witness Unit, who sits in the witness box. "Logistically, it would take some days for them to come to testify," says the officer. He explains that visas need to be re-submitted, which would take seven to ten days. In terms of familiarisation - reading previous statements - the witnesses will be able to start as soon as the Prosecution make this material available in the DRC.
Regarding Witness 38 and Witness 581(who has already testified, but the Defence wants to ask additional questions), they will testify via video link, which requires ICC staff to travel to the DRC to make the arrangements. As the officer explains, that will take between seven or eight days.
Finally, regarding the two investigators, the Prosecution tells the judges that both have already been contacted, but due to their professional commitments they are not able to come to The Hague before the 15th of November. "We are trying to see whether they can come earlier," says Mr Sachdeva.
Judge Fulford insists: "The evidence in this case must restart as soon as humanly possible. The delays are very substantial."
When fiction becomes reality
Before the end of today's hearing, the Defence asks the judges to consider a book published in August under the french title Le monde, le lézard et moi - The world, the lizard and me. Maitre Mabille tells the judges that according to their research, the Montreal author, Gil Courtemanche (well known for his first novel A Sunday at the Pool in Kigali, on the rwandan genocide) had a contract as a consultant for the Office of the Prosecutor from September 2008 until November 2009 and he was close to the Chief Prosecutor, Luis Moreno-Ocampo, for whom he wrote a number of speeches.
The book is a novel that narrates the story of an ICC analyst in the case of a congolese warlord called Kabanga who recruited child soldiers. For Maitre Mabille, fiction is too close to reality. "The book describes this case," says the Counsel. "We are traumatised by the terms used in it; they are of an aggressive nature."
The Defence therefore asks the Chamber to admit some excerpts of the book into the case as it is their belief that these excerpts prove that the Prosecutor does not respect his duty to be impartial.
On 17 March 2010, Lubanga's lawyers also brought to the Court's attention an interview that Béatrice Le Fraper du Hellen, Head of the Jurisdiction Complementarity and Cooperation Division of the Office of the Prosecutor, gave to the press on the matter of the intermediaries. In the article, the journalist quoted Ms. Le Fraper du Hellen as stating that the intermediaries were the ultimate line of defence for Lubanga's lawyers because they have no other argument. "They haven't proven that," Ms. Le Fraper du Hellen said. "Nothing is going to happen. Mr. Lubanga is going away for a long time." Her comments irked the Defence team and the three judges.
