The trial of former Congolese leader Thomas Lubanga this heard evidence from a defense witness who testified via video link from Ituri province in the Democratic Republic of Congo (DRC) – and then proceeded onto the spring judicial recess. The trial is scheduled to resume on April 21, 2010.
Before the start of the witness’ testimony on Tuesday, all of which was to be given in closed session, presiding judge Adrian Fulford advised that since the witness was vulnerable, questions should be put to her sensitively. “Counsel must put short questions in a way which must be understandable. The witness must not be upset,” said the judge.
According to a court filing by the defense, the evidence by this witness, who was referred to as ‘Witness 14’, would relate to two prosecution witnesses. The defense stated in the filing that ‘Witness 14’ would provide evidence that she was the mother of a prosecution witness who had stated in his testimony that he was sure his mother was dead. She would also testify that she had met her son after the end of the war in Ituri.
On March 5, 2010, judges granted the defense application to hear her evidence using the remote facility. Earlier on February 10, 2010, judges Fulford, Elizabeth Odio Benito, and René Blattmann ruled on that the law allowed witnesses to testify electronically for various reasons.
The International Criminal Court (ICC) charges that Mr. Lubanga enlisted and conscripted children under the age of 15 years and used them “to participate actively” in armed conflict. The alleged crimes were committed between September 2002 and August 2003 in Ituri.
In their application to have ‘Witness 14’ testify via video link, Mr. Lubanga’s defense stated that this 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.
This week also saw Mr. Lubanga’s lawyers ask court for permission to question a former prosecution witness about certain elements of his testimony, but prosecutors opposed the move. Defense attorney Marc Desalliers said it would be important for the defense to continue to explore certain areas which were closed when ‘Witness 298’ testified “for understandable reasons because the witness was presented as living under very vulnerable conditions”.
Mr. Desalliers stated: “The answer he gave with respect to his mother was a bit ambivalent. We would like that the material which has been presented so far should be reviewed…” It was not possible to establish whether the mother Mr. Desalliers was talking about was the same witness who testified from Congo via video link.
In opposing the defense application, prosecuting attorney Manoj Sachdeva argued that judges had in the past granted the right of parties that are not calling witnesses to interview the other parties’ witnesses, but this should be in advance of their testimonies. He argued further that there was no legal basis for the defense to now go back to ‘Witness 298’ at this stage.
Mr. Sachdeva added that prosecutors did not know what the defense wanted to get from interviewing the witness afresh. “They may be issues that could have been put to the witness in cross-examination at the time he testified,” he said.
Sachdeva said: “There are certain areas in relation to this witness which should be treated with extreme caution and I raise the issue in respect to the witness’ mother and in fact as the chamber is aware, questions on that regard were stopped at a particular time during the cross-examination for those very reasons – humanitarian reasons.”
Presiding judge Adrian Fulford said there needed to be finality on this matter “because otherwise you could have a witness giving evidence and you could endlessly go back to him and her and try to improve on the questions which you put and the answers you received during the course of the evidence.”
He asked the defense to set out in writing the subject they wished to raise with the witness along with an explanation as to why it had become necessary to go back to ‘Witness 298’ for a further interview. The defense said they were satisfied with the judge’s counsel.
The Lubanga trial – the first to be tried at the ICC – resumed on January 7, 2010 after a six month hiatus. The defense case commenced on January 27, 2010, and since then, 13 defense witnesses have testified, as have two expert witnesses called by the chamber, three victims participating in the trial, and a former prosecution witness who testified briefly last June and confessed to have told prosecution investigators lies which were allegedly fabricated by an intermediary of the ICC’s prosecution investigators.