International Criminal Court (ICC) prosecutors have asked judges in the Thomas Lubanga war crimes trial to allow them tender as evidence eight documents which they say would help in determining the ages of some prosecution witnesses who testified as former child soldiers.
According to a court filing of March 26, 2010, the documents are hospital records and affidavits from investigators of the ICC’s Office of the Prosecutor (OTP) attesting to the date on which hand-wrist and mandible x-rays were taken of a number of prosecution witnesses.
Prosecutors said the x-rays themselves, and the reports discussing the results of analysis of the x-rays, were admitted as evidence during the testimony of two expert witnesses on May 12 and May 13, 2009.
Dr. Caroline Rey-Salmon and Professor Catherine Adamsbaum, both forensic medicine experts to the French Supreme Court, testified at Mr. Lubanga’s trial that based on those x-ray images, some of the witnesses may have been as young as 10 or 11 years old at the time the Union of Congolese Patriots (UPC) is alleged to have used child soldiers.
The experts added that some of the boys may not have been as young, pointing out that the poor quality and limited nature of the images created a margin of error.
The testimony by the experts was part of the prosecution’s attempt to prove that some of the former UPC fighters who testified at Mr. Lubanga’s trial were under the age of 15 when they were trained and used in combat. Mr. Lubanga, the alleged head of the UPC and its armed wing, is on trial over the recruitment, conscription and use of child soldiers during 2002 and 2003.
Mr. Lubanga’s defense has said it intends to demonstrate that all the witnesses who were presented as child soldiers deliberately lied to the court. The defense contends that six of them were never child soldiers, the seventh lied about his age and the conditions in which he enrolled, and the eighth never belonged to the UPC.
Prosecutors stated in their March 26, 2010 filing that since the evidence they wanted to be admitted was of a non-contentious nature, the fact that the hospital certificates were only available after the close of the prosecution case, and the early notice prosecutors gave of the application, “tendering these documents is proportionate, necessary to establish the truth and will not prejudice the position of the accused.”
After the testimony by the age-determination experts, judges advised that it would be helpful to establish the dates on which the x-rays of the witnesses were taken. That would help give an indication of how old the witnesses were at the time the images were taken.
The experts told the trial that the age determination technique they employed involved studying the bones of the left wrist and hand, because the development of these body parts indicated a person’s age. The method was effective for age determination in males less than 20 years old and females less than 17 years old, they said. Beyond those ages, said the experts, these bones are normally fully developed.
The experts conceded that poor nutrition, physical exercise, and disease were some of the factors which could distort results.
The OTP said in its latest filing that in order to save court time, prosecutors had been attempting to secure agreement from the defense as to dates when the x-rays were taken, hence the timing of the present application. “The admission of these documents will avoid the calling of additional witnesses, or recalling previous witnesses, to testify on this issue,” the OTP concluded.
The trial is on recess until April 21, 2010.