Lubanga Trial Chamber Issues Written Order Denying Stay
Trial Chamber I of the International Criminal Court (ICC) issued an order denying a defense request for a stay of the proceedings of the trial of Thomas Lubanga Dyilo on March 7, 2011. The court has ordered the trial to resume, which it since has, as described here.
The order describes a number of instances where the prosecution used intermediaries whose reliability it had reason to doubt, but did not pass the information that the were credibility concerns on to the court or the defense. The court summarized some of the concerns in this paragraph:
By way of summary, therefore, it is argued that although from a range of
materials Intermediary 316 was clearly to be suspected of providing false
information or eliciting false evidence, the Office of the Prosecutor chose to
continue working with him until at least April 2008, avoiding investigating
the reliability of the material he provided or alerting the Chamber to the
potential difficulties.
Intermediary 316 allegedly convinced at least one witness, witness 16 to falsely claim that he served as a child soldier in Lubanga’s army. Further, Intermediary 316 falsely claimed that his assistant had been murdered and the murderers were out to get him. When it was found that the assistant was not dead, and other parts of his story of death threats could not be verified, the prosecution continued to use the services of Intermediary 316. Reports indicated that there were concerns in the Office of the prosecutor about the reliability of his information, but this was not disclosed to the defense or the court, and the OTP continued to use his information.
In addition, the defence alleges that the prosecution was aware that Intermediary 316 was passing false information to the prosecution. It is suggested that internal reports that reached the highest level of the Office of the Prosecutor revealed that Intermediary 316 had lied to the investigators regarding the situation of three potential former FNI child soldiers. The
investigators noted that one of the child soldiers introduced by Intermediary 316 appeared to have been coached. It is said that this was left uninvestigated.322 Moreover, two emails sent by Witness 583 to his superiors in May 2006 set out the doubts that were expressed about expenditure allegedly incurred by Intermediary 316. In an investigator’s note dated 18
June 2010 it is suggested that Intermediary 316 had little credibility as regards events that occurred between 2006 and 2009. When Intermediary 316 was questioned by the Office of the Prosecutor in May 2008, he admitted to having lied, and having persuaded someone else to lie, to the investigators in order to obtain money to meet a personal debt. In October
2008, Intermediary 316 informed the prosecution that his assistant (Witness 183) had been murdered and that his killers were seeking him. He repeated this claim when he was questioned on this again in October 2009 and in November 2010. However, the Prosecutor accepts that Witness 183 is alive. Finally, in May 2008 the Office of the Prosecutor decided not to refer Intermediary 316 to the VWU because the threats he had alleged had not been established, and his family had provided varying accounts of the same events.
The chamber noted similar concerns about the work of another intermediary:
Intermediary 321 encouraged young
boys from [REDACTED] to make false claims to investigators from the
Office of the Prosecutor that they had been enlisted by the armed wing of
the UPC (including Witness 213, Witness 294, Witness 297 and Witness 298,
who each gave evidence). Defence Witness 4 maintained that
Intermediary 321 asked him and others to give a false story to the
prosecution that he had been enlisted in the UPC, and he was promised
assistance, training and money. He said the lies included their names, where
they lived and their ages. He gave evidence that he was coached in his false
account by Intermediary 321, over a number of days.
The defense also raised concerns about the evidence gathered by Intermediary 31:
Intermediary 31 acted as the intermediary for a number of witnesses, and it
is said that he was employed in that general role between 2005 and (at least)
2008. The defence submits that there is reason to suggest that he encouraged
potential witnesses to provide false evidence. The defence refers to events in
February 2006 when concerns were raised as to his credibility and dealings
with him were suspended (it is said the executive committee of the Office of
the Prosecutor was alerted to this turn of events). The defence relies on
evidence concerning his remuneration. Overall, the defence argues that his
employment with the prosecution should have been terminated and any
evidence gathered by him required thorough investigation; instead, it is
averred his services continued to be used and he was called to give
evidence.
The court found that despite repeated violations of disclosure obligation and the possible fabrications of evidence by the intermediaries:
The Chamber is of the view that this is not a situation in which alleged prosecutorial misconduct has disabled the accused from properly defending himself. The Chamber has responded comprehensively to the defence submissions so as to ensure that the totality of the available evidence on the relevant intermediaries is explored during the trial. Four intermediaries have been called to give evidence; the investigators who were principally responsible for each of them have testified; and the prosecution has indicated that it has effected disclosure of all relevant materials, following various rulings by the Chamber. Reverting, therefore, to the question posed by the Chamber in paragraph 166 above, the Chamber is unpersuaded, in these circumstances, that “the accused’s rights have been breached to the extent that a fair trial has been rendered impossible”.
The court found that it is not odius or repugnant to justice to continue the trial of Lubanga under the circumstances, as the court can choose to overlook the unreliable evidence in reaching its determination:
Contrary to the submission of the defence, the Chamber will be able, in
due course, to reach final conclusions on the alleged impact of the
involvement of the intermediaries on the evidence in this case, as well as on
the wider alleged prosecutorial misconduct or negligence based on the
suggested failure by the Office of the Prosecutor to supervise or control the
individual intermediaries and to act on indications of unreliability (together
with the consequences of any adverse findings in this regard, which the
defence alleges taints all the prosecution’s evidence).
The court continued, later in the 92 page opinion:
Even taking the accused’s submissions at their highest, the suggested failure
to check and investigate the statements of the prosecution’s witnesses, and
any other relevant evidence in the Prosecutor’s possession, or to reveal the
alleged weaknesses in the accounts of Intermediary 316 and Witness 157,
cannot properly be characterised as “illegal conduct” of a kind that would
make it “repugnant” or “odious” to continue the trial of the accused.
Similarly, the suggested breaches of the accused’s rights under Article
54(l)(a) and (b) of the Statute would not constitute such a serious violation
of the statutory safeguards as to make his trial ipso facto unfair. The
Chamber is persuaded that it will be jable, at the end of the case, to review in
detail the instances in which it is suggested the prosecution failed in its duty
to ensure that it was submitting reliable evidence. If the Chamber concludes
that this occurred in any of the instances relied on by the defence, the
appropriate remedy will lie in the Court’s approach to the evidence in
question, and particularly the extent to which it is to be relied on. A failure
to ensure that the Chamber has received reliable evidence, especially when
the prosecution was on notice that significant doubts existed in relation to
material in question, may affect the Chamber’s conclusions on the relevant
area or issue. On the facts advanced by the defence on this issue, the
suggested failings on the part of the prosecution – including the suggestion
that on occasion the Prosecutor deliberately avoided the process of
verification – are not so egregious as to necessitate the termination of the
trial.
The trial has, since the issuance of this order, resumed. It is not clear how much longer the trial might last at this point. Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of Congo (DRC) and is alleged to have used child soldiers in his army. Lubanga is the first person to face war crimes charges in the ICC. His trial began in January 2009, and he has been in The Hague since 2006.
