Judges Halt Lubanga Proceedings

Judges at the International Criminal Court, ICC, this week halted proceedings in the war crimes trial of former Congolese rebel leader Thomas Lubanga, citing abuse of judicial process.

The judges said that they will send a formal warning to the ICC prosecutor Luis Moreno-Ocampo and deputy prosecutor Fatou Bensouda “for a deliberate refusal to implement our unequivocal orders”.

The main source of contention was the failure of the prosecution to reveal the identity of intermediary 143, who helped prosecution investigators identify people who could testify against Lubanga.

Prosecution staff claimed that revealing the identity of intermediary 143, before protective measures were put in place for him, would have put his life at risk.

“The evidence that has come out demonstrates that there is a risk in Bunia that you can be killed, or one can be killed if the Hema community considers you to be a traitor, and the persons who are witnesses against Lubanga or who assist witnesses against Lubanga are regarded as traitors,” Sara Criscitelli, the prosecution coordinator, told judges this week.

But the defence argued that they could not proceed with the cross-examination of intermediary 321 if they were unaware of the identity of intermediary 143.

This week judges ruled that they did not have any reason to believe that intermediary 143 would be in danger if his identity were revealed to the defence team.

Announcing the stay of proceedings, Presiding Judge Adrian Fulford said the prosecution had declined to obey the order issued by judges.

He said that on July 15 the court would hear submissions about whether Lubanga should continue to be detained or should be released. Lubanga has been held in The Hague since March 2006.

He added that, apart from an application from the prosecution to appeal the stay of proceedings, the Lubanga trial would be halted in its entirety.

“There are to be no filings, no submissions, no applications on any issues other than those which I have just indicated,” he said. “That means that the court officer currently in the DRC should return. We do not propose to hear any further evidence. Witness 38 should receive our apologies if he has been inconvenienced, as should the other witnesses whose evidence we had intended to hear by way of a video link.”

In their written decision, judges said, “Failure to disclose information which is relevant for the examination of witnesses testifying in this context is likely to be relevant to [the] defence abuse [of process] application.”

Lubanga is accused of enlisting, conscripting and using child soldiers in armed conflict during 2002 and 2003.

Since January 29, when the defence started its case, the court has heard a range of allegations that prosecution intermediaries bribed and coached witnesses, persuading them to provide false testimony to court.

This prompted judges to order prosecutors to produce two intermediaries to testify, and to disclose the identity of intermediary 143. Three prosecution investigators have also been ordered to take the witness stand, although none have yet appeared.

Recently, Lubanga’s defence team has indicated that it is on the verge of filing an application for judges to consider throwing out the case against Lubanga, on the grounds of the abuse of process perpetuated by the intermediaries.

IWPR's weekly updates of the Thomas Lubanga trial are produced in cooperation with the Open Society Justice Initiative of the Open Society Institute, OSI. Daily coverage of the trial can be found at http://www.lubangatrial.org/.