As the International Criminal Court (ICC) prepares to resume the trial of accused Congolese militia leader Thomas Lubanga in early May, witness protection has emerged as a key concern.

This was immediately apparent when the prosecution’s first witness recanted his story and told the court that he had been coached on what to say by members of an aid organization.

The witness was excused from the stand, but later returned and continued his testimony after he was shielded in the courtroom from Lubanga’s gaze.

While this was viewed as an initial setback, the prosecution has recovered, according to observers, and appears to be back on track.

Subsequent witnesses considered vulnerable to intimidation have been similarly shielded or have provided testimony in closed chambers.  

After 11 weeks of trial, prosecutors at the ICC have confirmed that their two main challenges are the need to ensure protection for vulnerable witnesses and the need to ensure the proper conditions for such witnesses to testify in court.

“We are continuously working with the Victims and Witnesses Unit of the court to take adequate protection measures wherever and whenever they are needed,” said Beatrice Le Fraper, special adviser to the ICC prosecutor.

“Should there be a doubt regarding the security of a witness, we will not call him or her,” Le Fraper said.

Since the January 26, 2009 start of the trial, 17 witnesses have testified and the prosecution hopes to call 13 more when the trial resumes on May 5.

The witnesses included former child soldiers and their relatives, former commanders and bodyguards who worked close to Lubanga, and others involved in the conflict in the Ituri region of the Democratic Republic of the Congo.

Two experts – a historian and a clinical psychologist – have also testified.

Lorraine Smith of the International Bar Association (IBA) said that the trial is being conducted efficiently, and the court has worked hard to protect vulnerable witnesses, some of whom travel long distances in order to testify.

Both the prosecution and the defense are making “tremendous effort” not to re-traumatize witnesses, Smith said. “Everyone is being quite cautious in terms of not trying to overstretch the witnesses.”

Nonetheless, the defense has been able to challenge the credibility of some witnesses due to conflicts between the witnesses’ previous statements and their testimony in court.

Smith welcomed the chamber’s indication that they will look at ways to give the defence team more time to spend with their client.

“That’s an important decision because it is crucial that the accused is able to give proper instructions to his lawyers concerning his defence,” Smith said.

Despite the additional time for the defense, Le Fraper was confident of the prosecution’s case.

“We believe we have presented evidence to prove that Lubanga is responsible for enlisting and conscripting children under the age of 15 and for using them to participate actively in hostilities,” said Le Fraper.

“We saw and heard compelling evidence, including the testimony of seven former child soldiers who described the modus operandi of Mr. Lubanga in abducting children under the age of 15, training them under unspeakable conditions, and using them to attack civilians,” Le Fraper said.

The court also heard testimony about children being beaten, tortured, raped, and killed during these activities, she said, and of “children who in turn beat, tortured, raped, and killed upon the instruction of Lubanga.”

Others have also expressed satisfaction with the progress of the trial.

“So far we don’t have any concerns about either the efficiency or the fairness of the trial,” said Param-Preet Singh, a counsel with Human Rights Watch in New York.

Singh attributed the efficiency to the court’s judicial oversight.

“The presiding judge seems to have a pretty good control over the courtroom,” Singh said.

The trial judges “are really keeping a close eye on how witnesses are questioned, and the direction of the questioning, making sure that things remain on point,” she said.

With the exception of the prosecution’s first witness who retracted his testimony, but later testified, the trial had been without incident, Singh said.

“And with all the problems that the Lubanga case had up until the trial started,” she noted, referring to months of procedural delays, “it’s good that nothing remarkable happened when the prosecution was questioning witnesses.”

“It is good for the perception of the Lubanga trial overall,” Singh said.

Procedural delays were to be expected and may have actually helped the trial move smoothly, said Mariana Pena, of the International Federation for Human Rights.

“There were lots of procedural issues before the trial started,” Pena said, “and that is why it makes sense that (the trial) moves fast now. We have seen more testimony than procedural issues.”

“It is important to have a fair and fast trial for the accused,” Pena said. “My sense is that it has been progressing well.”