Thomas Lubanga’s attorneys have asked for permission for one of the defense witnesses to testify via video link from Ituri in the Democratic Republic of Congo (DRC). They said traveling to The Hague would be cumbersome for the “extremely vulnerable” witnesses.

Judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann ruled on February 10, 2010 that the law allowed witnesses to testify electronically for various reasons.

However, they did not grant the defense request — instead, they directed the Victims and Witnesses Unit (VWU) of the court to assess the matters raised by the defense, and then advise judges whether giving evidence in the Netherlands would be significantly detrimental to the witness and whether using a video link was a reasonable alternative for the witness.

The judges nonetheless pointed out that the suggested personal circumstances of the witness led to a strong prima facie conclusion that requiring her to travel to The Hague to give evidence would be detrimental to her psychological well-being and her dignity.

“On the basis of the defense submissions, the change in environment could be extremely destabilizing and upsetting for the witness, bearing in mind her domestic circumstances and her unfamiliarity with the basic norms of life in Europe,” the judges said.

The defense described the witness as “extremely vulnerable” and said she would suffer great prejudice and harm if she had to travel to the court to testify. She is in her mid forties, and resides in a country area that is relatively inaccessible, said the defense, adding that the witness lived in conditions of extreme poverty, and had never previously travelled.

The defense said the witness had never used a toilet, a sink, or a telephone. Given the length of time she would need to spend, first, in the Congolese capital Kinshasa obtaining a passport and, thereafter, in the Netherlands, the defense suggested that this would be a traumatic experience for her, and that she would be completely helpless and at a loss in these unfamiliar environs.

According to the defence, her evidence will relate to two prosecution witnesses. She will provide evidence contrary to one prosecution’s claim that he was sure his mother was dead, the defense said.

Legal representatives opposed the defense application, observing that it was not made on the basis that the witness was unable to travel to The Hague or that she had refused to testify in person, but instead it was founded on her alleged vulnerability.

The legal representatives also noted that the application was not made by the VWU or by the witness, but by the defense. They argued that because Lubanga’s supporters are influential in Bunia, they might have contact with the witness and influence her evidence.

Judges said the Rome Statute required the court to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy, of victims and witnesses.

The statute also allows witness to testify through electronic means. Article 69(2) of the Statute provides that the court may “permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts…”

“Contrary to the contention of the legal representatives, applications for evidence to be given via a video link are not restricted to the two suggested limited situations, namely when the witness has either refused to attend court or is unable to do so,” the judges ruled.

Judges will make a final ruling on the defense request after hearing back from the VWU. So far, five defense witnesses have testified in the trial of Lubanga, whom the ICC alleges was the commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC), a militia group that used child soldiers in inter-ethnic fighting in DRC.

Lubaga’s defense team is currently in Congo conducting additional research for their case. The trial resumes on Wednesday March 3, 2010.