Lubanga Chronicle #99 Defense questions OTP Intermediary in private
Monday, 1 November 2010 - The intermediary who liaised with the Prosecution in facilitating contact with former child soldiers comes back to The Hague to continue his testimony. The witness, who worked for an organisation involved in the reunification of former child soldiers with their families and communities, takes the stand to challenge the allegations made against him. According to various Defence witnesses, he coerced the children into giving false testimony before the Court.
As part of the in-court protective measures granted by the Bench, the witness testifies with the pseudonym "Intermediary 321" and substantial part of his evidence will be heard in camera for security reasons. "Unfortunately most of our questioning will be conducted in private session," Defence Counsel J.M Biju-Duval stated at the beginning of the session.
In its decision on 12 May 2010, the judges ordered OTP intermediaries 321 and 316 to testify, and required the disclosure of the identity of a third one - intermediary 143 - to enable the Defence to conduct "necessary and meaningful investigations and to secure a fair trial for the accused" explained the Chamber. The Defence had alleged "inappropriate behaviour" on the part of these individuals, and as a result, Mr. Lubanga's lawyers asked the Chamber to dismiss the charges against their client on the grounds of abuse of process.
On 30 June 2010, Intermediary 321 testified for the first time before his evidence was halted due to discrepancies between the Defence and Prosecution's views on disclosure obligations. On that occasion, the witness told the Court that he never asked the children to lie to the investigators about their age or the armed group they belonged to. "I said nothing to the children. I already knew that they were children who had been part of the war," he stated. The intermediary also denied having encouraged any of the children to say that they were forcibly recruited by Thomas Lubanga. "Why would I tell a child to lie?" asked the witness. According to his testimony, he didn't know what the ICC investigators were going to ask the children and he never attended any of the interview sessions between the former child soldiers and the OTP representatives.
On 7 July 2010, his evidence was interrupted when the Judges asked the Prosecution to disclose Intermediary 143's identity to the Defence. Whereas the Prosecution opposed the disclosure of any identifying information, alleging security concerns, the Defence considered the knowledge of 143's identity essential to continue questioning Intermediary 321. "Our primary obligation is to protect the individuals who collaborate with this Court," said Prosecution Coordinator Sara Criscitelli to the judges. "There are risks in Bunia if the community considers someone is a traitor. This is the real life on the ground."
The Chamber, in search of a solomonic decision, ordered the material disclosing the identity of Intermediary 143 to be confidentially provided to the Defence - limited to Counsels, assistants, and the resource person in the DRC - and under the condition that the information wouldn't be used for investigative purposes. The disclosure never occurred.
On 8 July, the Chamber ordered the stay of proceedings and, days later, the release of Thomas Lubanga, asserting that a fair trial of the accused was no longer possible due to the non-implementation of the Chamber's decisions by the Prosecution. "The Prosecutor cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court's orders whenever he decides that they are inconsistent with his interpretation of his other obligations," said Presiding Judge Fulford.
Three months later, the Appeals Chamber revoked both decisions and ordered the resumption of the trial, but the disclosure of identifying information related to Intermediary 143 remains a cause of dispute between the Defence and the Prosecution. During today's hearing, Lubanga's lawyers asked for a time limit to be placed on the Prosecution regarding the disclosure of Intermediary 143's identity. "I'd like to ask the Chamber to set a deadline for the Prosecution to disclose this information as soon as possible," said the Lead Defence Counsel, Catherine Mabille.
The matter of the intermediaries continues to be a burning issue in this case, so a second individual - Intermediary 316 - and two investigators are schedule to testify in the coming weeks to challenge the Defence's allegations of misconduct.
