Jun
06

Katanga Witnesses Testify, then Seek Asylum

Three witnesses who testified for the defense in the International Criminal Court (ICC) cases against Germain Katanga and Matthieu Ngdolo Chui sought asylum in The Netherlands after their testimony.

According to the Katanga trial website,  the witnesses testified that the government of the Democratic Republic of Congo (DRC) was responsible for the Bogoro attack, one of the allegations against the accused.  The case raises difficult questions for the ICC and its obligations to protect witnesses.   The three claim that by testifying against the government of the DRC they have put themselves at risk, and cannot safely return to the DRC.  They have asked the court to keep them in The Netherlands until Dutch authorities rule on the asylum requests.

The court has an obligation to protect witnesses, but cannot provide asylum.  Returning the witnesses to the DRC if they would be harmed would clearly not be in keeping with the court’s obligation to protect witnesses, but there is a limit to how long the court could hold them in custody, and it has no place to put them that is not custody.

The registry and its Victim and Witnesses Unit is trying to determine whether the safety of the witnesses can be adequately guaranteed with a return to the DRC.  The witnesses were in DRC custody when brought to The Hague.  The question to be resolved is whether or not returning them to DRC custody puts them at greater risk.

The case against Katanga and Chui is the second ICC case to go to trial.  Katanga and Chui are accused of war crimes and crimes against humanity. Katanga is alleged to have been the commander of the Patriotic Resistance Force of Ituri, (FRPI) and Chui is alleged to have been the leader of the Nationalist Front of Integrationists (FNI) both fighting against the government of the DRC.

The indictment alleges that Germain Katanga and Mathieu Ngudjolo Chui allegedly jointly committed through other persons, within the meaning of article 25(3)(a) of the Statute:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

The trial began in November, 2009. The defense began presenting its case in April of 2011.

 

Apr
21

Lubanga Trial Closes Evidence Phase

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has declared a closed the evidentiary phase of the trial of Thomas Lubanga Dyilo. The court had previously announced the schedule for closing arguments, previously discussed here, which Judge Adrian Fulford announced will not be changed. “The clock has started ticking and nothing save an earthquake will stop it,” The Lubangatrial.org blog reports him as saying.

Thomas Lubanga Dyilo is the first person to face the International Criminal Court. He is accused of the war crimes of recruiting, using and conscripting child soldiers.  He was brought to the court in 2006, and his trial began in January of 2009.  The defense began presenting it’s case in January 2010.  The case stopped several times because of the prosecution cross examining witnesses with information that had not been disclosed to the defense.  At one point, the trial chamber issued a stay, finding that Lubanga could not get a fair trial, the appeals chamber reversed, but disclosure of evidence has continued to be an issue. The trial chamber again recently ruled on the disclosure problems and denied another defense request to end the trial because of the disclosure issues.

The questions raised by the ongoing disclosure issues were discussed in part, here.  Ultimately, the attitude and actions of the prosecutor in timely and properly disclosing evidence will determine whether or not an accused may get a fair trial at the court.  That, and the court’s reaction to the prosecution’s failure to comply with rules and court orders will determine the credibility of the court.  The court has been much in the news lately, which has added to American awareness of its existence.  It’s continued existence will require credibility in fair trials for the accused followed fair treatment of the victims in the reparations process when there is a conviction.

 

Apr
13

Lubanga Closing Scheduled

Although testimony is still being taken, Trial Chamber I of the International Criminal Court (ICC) has set out a timetable for the closing arguments in the trial of Thomas Lubanga Dyilo.  The order states that the prosecution and the victims should go first and must make their submissions by June 1, 2011. Although it is common to have simultaneous submissions, the court ordered the prosecution to submit its argument first:

In light of the legal and factual developments since the commencement of the trial, which led, inter alia, to the most recent defence application for a stay of the proceedings based on an abuse of the process by the prosecution, the Chamber is of the view that it is necessary for the Prosecutor to file his written closing statement first. The accused is entitled to know, once the evidence has closed, the legal and factual basis on which the Prosecutor maintains he is guilty. In this particular case, the lack of clearly identified bases could, potentially, result in the defence responding to evidence that is no longer relied on. In the circumstances, the logic underlying Rule 141(2) of the Rules that  establishes the right of the defence to examine witnesses last also applies to these final written submissions. The defence is therefore entitled to file
its closing submissions once the arguments of the prosecution and the legal representatives have been submitted.

The prosecution’s closing argument is to be no more than 250 pages long and the victim’s submissions to be no more than 50 pages long for each team.  The defense has until July 15, 2011 to file a response of up to 300 pages.  The prosecution than can file a response on August 1, the defense has until August 15 to file a rebuttal to the prosecutor argument.  On August 25 and 26 the court will hear oral arguments about the case from the prosecution and defense as well as the victim’s legal teams and the Office of Public Counsel for Victims.

The chamber directed the parties to address the following issues in their closings:

i) Whether there was an armed conflict in Ituri, Democratic Republic of
Congo, between 1 September 2002 and 13 August 2003?
ii) If there was an armed conflict for the purposes of i) above, is there a
nexus between the armed conflict and the alleged crimes?
iii) Was the armed conflict of an international character or not of an
international character, for the purposes of Article 8 of the Statute?

iv) If the Chamber concludes that it was not of an international character,
what factors should be taken into account if the Chamber considers
modifying the legal characterisation of the facts (under Regulation 55)
for the period of early September 2002 to 2 June 2003?
v) What does the prosecution need to establish in this case under Article
25(3)(a) of the Statute?
vi) What is the meaning of the terms “conscripting” or “enlisting”
children under the age of fifteen years into the national armed forces,
into armed forces or armed groups or “using them to actively
participate in hostilities”, for the purposes of Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) and the corresponding Elements of the Crimes?
vii) What does the prosecution need to establish under Article 30 of the
Statute, bearing in mind Article 8(2)(b)(xxvi)(3) and Article
8(2)(e)(vii)(3) of the Elements of Crimes?

Apparent in the order is the concern that the court has not resolved for itself whether the discovery violations which were complained about recently, stopped the trial last summer, and have been at issue a number of times in the case, have deprived Lubanga of a fair trial.

Lubanga is the first person to face trial in the ICC.  He was brought to The Hague in 2006, his trial began in January 2009, the defense case began in January 2010.  He is accused of war crimes including conscripting and using child soldiers as leader of the Union of Congolese Patriots in the Democratic Republic of Congo.

At the ICC, victims are allowed to participate to a limited extent in the trial, including motions and commenting on evidence.  The victims may also seek an order for reparations from the court if there is a conviction.

Apr
09

Lubanga Aide Testifies that Lubanga Would Not Use Child Soldiers

Thomas Lubanga Dyilo’s personal secretary testified at the International Criminal Court (ICC) in The Hague, Netherlands,  this week that Lubanga would never have approved the use or recruitment of child soldiers.  The aide, Michel Angayika Baba, testified that he never saw minors in Lubanga’s bodyguard or entourage.  This is consistent with the testimony of an earlier witness for Lubanga.

Also this week the defense again complained about late disclosure of documents.  Failure to provide disclosures has been an ongoing issue in the case,  once stopping the trial, and the subject of repeated orders by the court. The prosecution offered three documents this week, which the defense argued should have been disclosed earlier.  The prosecution said one of the documents was simply a cleaner copy of an earlier document, two more “became relevant” because of the testimony of  a defense witness.  The prosecution’s determination of what is and what is not relevant and necessary to disclose had led the trial chamber to find last year that Lubanga could not get a fair trial, but that finding was reversed by the appeals chamber.

The prosecution’s position, that it must decide what material is relevant for disclosure has been troubling to some trial watchers and practitioners as well as to the trial chamber.  The prosecution takes the position that much of was it has cannot be disclosed to the defense, but only used a basis to find new evidence since the information has come through diplomatic channels and must be private.  This, of course, raises the question of whether or not the accused can be offered a fair trial if he cannot see the evidence against him or if potentially exculpatory evidence is being hidden, or ignored by the prosecution.

The question to be resolved is, do the rules provide an adequate protection of the accused?  Rule 77 says:
Inspection of material in possession or control of the Prosecutor
The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute
and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and
other tangible objects in the possession or control of the Prosecutor, which are material to
the preparation of the defence or are intended for use by the Prosecutor as evidence for the
purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or
belonged to the person.

Part of the issue comes from the hybrid nature of the court.  The court is both a civil law (European) and a common law (U.K./U.S) system. In a traditional civil law system the prosecution has a duty to fully investigate the case, including any exculpatory evidence before presenting the case to the court.  In common law systems the adversarial nature of the process, with full disclosure for the parties is presumed to better serve the interests of justice.  In a hybrid system, does the prosecutor have a greater duty to justice and full and fair investigation, or to build a case against the accused with the defense having an opportunity to present its own case?  Can the defense adequately present its case without all the files available to the prosecution?

In the end, the answers to these question, provided, in part, by the Lubanga case will determine whether or not the ICC is credible.  If the accused cannot get a fair trial, then what is the point of the court?

Lubanga is the first person to face trial in the ICC.  He is alleged to have been using child soldiers in the Democratic Republic of Congo, (DRC).  He was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.

Apr
02

Katanga and Chui Begin Defense Case

Germain Katanga and Matthieu Ngdolo Chui began presenting their defense last week.  Katanga and Chui are alleged to have committed war crimes and crimes against humanity as the leaders of the Patriotic Resistance Force in Ituri (FPRI) in the Democratic Republic of Congo.

Katanga and Chui are accused in an indictment of the following crimes:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

Katanga and Chui were brought before the court in February of 2008, their trial began in November of 2009.  The Katanga team has estimated that it would take 122 hours to present its defense witnesses and Chui team estimates 200 hours of court time.  According to the Katanga trial website, if the prosecution takes an equivalent amount of time to cross-examine the witnesses, then the defense case will require 644 hours of court time or about 16 months given the court’s schedule, roughly equivalent to the time the prosecution needed to present its case.

Katanga and Chui were the second case to go to trial at the International Criminal Court (ICC) in The Hague, Netherlands, following the case of Thomas Lubanga Dyilo.  The third case, Jean-Pierre Bemba Gombo from the Central African Republic, started trial in November 2010, another case, against Abdallah Banda and Saleh Jerbo from Darfur has completed confirmation of charges and is now headed for trial.  The latest case, against Callixte Mbarushimana is scheduled for confirmation of charges in July.

Mar
31

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.

 

Mar
31

Lubanga Trial Resumes, Again

The trial of Thomas Lubanga Dyilo resumed this week after a four month break to consider renewed motions to dismiss.  The defense is now presenting its case and offered testimony that Lubanga had ordered the demobilization of child soldiers.  One witness testified that Lubanga’s group, the Union of Congolese Patriots (UPC) provided security in the Ituri region of the Democratic Republic of Congo (DRC) because no one else was able to do so.   There was testimony that Lubanga ordered the demobilization of all soldiers under 18 on three different occasions.  It is not clear if these orders may help to exonerate Lubanga or indicate that he was aware of the presence of child soldiers.  The defense seems to be that child soldiers were integrated into the UPC by assimilating other groups which had conscripted child soldiers, that Lubanga then ordered the child soldiers to be demobilized and his officers did not implement those orders.

Testimony continued today with a witness testifying that there was no forced conscription of child soldiers. The defense witness, Bede Djokaba Lambi Longa testified that there were not child soldiers in the UPC.  According to Longa, some soldiers were not tall, but he did not know them to be children.  There were children in the camps, but they were not soldiers according to Longa.

Lubanga is the first person to face charges in the International Criminal Court (ICC).  He is charged with conscripting and enlisting child soldiers as a war crime.  Lubanga was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of new charges and in 2010 to consider the argument that he could not get a fair trial because of the actions of the prosecution in withholding apparently exclupatory evidence. The appeals chamber ultimately reversed that decision and the case is now resuming following a denial of another motion to suspend the case.  A timeline of the trial is available here. Disclosure by the prosecution has been a continuing issue.

Mar
01

Lubanga Trial to Re-Open

The trial of Thomas Lubanga Dyilo will re-open soon.  The trial was stopped for a few months while the trial court considered a defense motion to dismiss for the prosecution’s failure to provide disclosure as required.

Part of the issue has been the appearance of two witnesses for the defense who testified that two witnesses for the prosecution had stolen their identity and falsely claimed to have been child soldiers. This led to a fight about the identity of the prosecution investigator, or intermediary in the parlance of the court, who found those witnesses and a lengthy delay while the prosecution argued it could not disclose the intermediary’s identity.  The court has since issued a number of decisions clarifying the disclosure obligations of the prosecutor and whether the delay in meeting those obligations prejudiced the defense.

Lubanga was the first defendant in ICC custody, arrested in 2007, his trial began in January 2009.  The defense began presenting their case in January, 2010.  The case was halted over the summer because the trial court ruled that Lubanga could not get a fair trial because of the disclosure issues.  A timeline of the trial, through the halt in 2010, is available here.

The appeals chamber reversed the trial court’s finding that Lubanga could not get a fair trial, finding that the trial chamber had not explored sanctions sufficiently.  The trial restarted then stalled on a motion to dismiss from the defense. A resumption date for the trial has not been announced.

Lubanga is accused of recruiting, conscripting, and using child soldier as war crimes and crimes against humanity in the Democratic Republic of Congo. The fairness of the trial is an issue raised again and again in this case.  Failure to provide a full and fair process to the defense will make the court less credible.

Dec
26

Lubanga Disclosure Still an Issue

Trial Chamber I at the International Criminal Court (ICC) in The Hague has issued another decision in the ongoing battle over disclosures by the prosecution in the trial of  Thomas Lubanga Dyilo.  Lubanga’s trial commenced in January of 2009, the defense began its case in January 2010.  Testimony was to have been completed by now, but the chamber issued another decision on December 13, 2010 on disclosure.  The prosecution sought court approval for the names and evidence it has already withheld as “work product.”  The court did order the disclosure of some names and information previously withheld from the defense.

The prosecution had argued the notes of the investigators were not discoverable as they were work product.  The court previously issued a ruling evaluating the disclosure obligations of the Office of the Prosecutor in November, shortly after a ruling that prosecutor had violated its obligations.  In July, the trial chamber stayed the proceedings finding that a “fair trial … is no longer possible.” In October  the appeals chamber found that the trial chamber had not exhausted its power to sanction the prosecution for non-disclosure.  The fact that the prosecution did not disclose information it was ordered to disclose was not in dispute, the prosecution claimed it could not disclose the information because of its obligations to the governments and organizations that had provided the information.

The prosecution had been admonished by the trial chamber for failure to comply with disclosure orders in February 2010 for disclosures that should have been made “no later than December of 2009.”  The ongoing disclosure issues in this case highlight a conflict in the concept of the court and the obligations of the parties.  The Office of the Prosecutor is a semi-diplomatic office with obligations to the U.N. and nations which have provided information.  But in order to guarantee a fair trial it must also provide access to that information to the defense. The conflict has been that even when ordered by the court to disclose information, the prosecution argues that it’s diplomatic obligations prevent it from doing so.  Can the court offer fair trials without full disclosure?  The trial chamber has argued that it cannot but was overruled by the trial chamber with an eye towards greater sanctions on the prosecution.

Lubanga is the first case go to trial at the ICC.  He was brought before the court in 2006.  He is alleged to have been the leader of the Union of Congolese Patriots and is accused of conscripting and recruiting child soldiers in violation of the Geneva Conventions and the Rome Statute, the founding treaty of the ICC.  Lubanga is a citizen of the Democratic Republic of Congo.  The ICC has jurisdiction in the 114 nations that have ratified the Rome Treaty, or over their citizens who commit war crimes, crimes against humanity or genocide as defined by international law.

If there is a conviction in this case, the court could move on to the reparations phase where the victims of war crimes or crimes against humanity could seek orders of the court to make reparations from the funds of Lubanga, or from the trust fund for victims.  The ICC is the first international tribunal to offer a process for reparations and what form those reparations orders will take is still an open question.

Nov
09

Judges Again Fault Office of the Prosecutor for Late Disclosure

Presiding Judge Adrian Fulford, hearing the case against Thomas Lubanga at the International Criminal Court, (ICC) has again raised concerns about the conduct of the prosecution in failing to identify a witness. The prosecution apparently had interviewed a witness, determined the testimony was not credible, but did not disclose the information to the defense.  The prosecutor has an affirmative duty to disclose exculpatory information to the defense.

The trial has previously been suspended for several months because of the non-disclosure to the defense. In giving the prosecution until Friday November  5 to make the disclosure, Judge Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,”

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He was brought to the court in 2006. Lubanga was the leader of the Union of Congolese Patriots (UPC), and is the first person to face trial at the ICC in The Hague, Netherlands.  Lubanga is accused of the war crimes of  using and conscripting child soldiers. The trial began in January 2009, the defense began presenting its case in January 2010.  The case has been delayed several times,  and just resumed after a lengthy delay when the trial court suspended the case over concerns that Lubanga could not get a fair trial because of the repeated refusal of the Office of the Prosecutor to disclose the identity of a prosecution investigator accused of bribing witnesses.  The other delays are recounted here. The appeals chamber determined that  the case could continue, and that the court could impose sanctions on the Office of the Prosecutor to induce compliance with the court’s orders.

Testimony in the case is expected to conclude this month.  The defense is to complete its written argument requesting dismissal of the case because of prosecutorial misconduct for not properly disclosing witnesses or complying with its obligations.

Categories

Recent Comments

Tags

abduction Abu Garda Afghanistan Arrest warrant Bahar Idriss Abu Garda Callixte Mbarushimana Central African Republic child soldiers complementarity counsel crimes against humanity Darfur Democratic Republic of Congo Den Haag genocidal intent Genocide Germain Katanga Government of Sudan Grenada ICC International Criminal Court ISAF Ivory Coast Jean-Pierre Bemba Kenya Libya Lubanga lubange Luis Moreno-Ocampo Matthieu Ngdolou Chui New York Times Nicholas Kristof Omar Al Bashir President of Sudan Qadafi rape reparations Rome Statute sexual slavery Sudan The Hague Thomas Lubanga Union of Congolese Patriots victims war crimes
Go back to top

Switch to our mobile site