Judges at the International Criminal Court (ICC) have rejected an application by the prosecution to order an individual who is alleged to be a relative of war crimes accused Thomas Lubanga to give evidence.
Presiding judge Adrian Fulford stated that the accused was protected from disclosure orders regarding the witnesses he intended to call or the documents and other materials he proposed to introduce. He added that the identity of ‘Cordo’ – who prosecutors alleged was a cousin to Mr. Lubanga – was not ‘evidence’ that the accused could be compelled to reveal, particularly given that he did not intend to call him.
A week ago prosecutors asked judges to summon the individual who goes by the nickname of Cordo to testify about his alleged role in intimidating both prosecution and defense witnesses and influencing them to give false testimony.
Mr. Lubanga’s lawyers say they are about to ask judges to dismiss the charges against him, on the grounds that intermediaries of the ICC’s investigators corrupted evidence against Mr. Lubanga. Judges have summoned prosecution intermediaries to testify about the role Mr. Lubanga’s defense alleges intermediaries played in forging evidence against him.
During today’s hearing, judges said they were unaware of the identity of Cordo and were therefore unable to call him even they had concluded that summoning him to give evidence was in the interest of justice. Additionally, judges ruled that it was not for them to direct the defense as to which, witnesses to call, noting that it was entirely for the accused to decide whether or not to introduce evidence.
“The chamber is entitled to call any evidence it decides is necessary to establish the truth but this provision does not entitle it to impose disclosure obligations on the accused, thereby circumventing or undermining his express statutory protections,” stated Judge Fulford.
Mr. Lubanga is on trial over the war crimes of conscripting, enlisting, and using child soldiers in armed conflict in the Democratic Republic of Congo during 2002 and 2003. Prosecutors at the ICC allege that Mr. Lubanga was the leader of the Union of Congolese Patriots (UPC) and of the Patriotic Forces for the Liberation of Congo (FPLC), which used child soldiers in inter-ethnic fighting in the Congo’s Ituri Province. Prosecutors also charge that UPC used hundreds of young children – some as young as 11 years – to kill, pillage, and rape.
Mr. Lubanga’s defense team has argued that none of the prosecution witnesses who presented themselves as former child soldiers in the UPC ever were. The defense also contends that the UPC did not have a recruitment policy for child soldiers and that “Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.”
In rejecting the prosecution’s application for Cordo to be summoned, judges ruled today that the positions of the defense and the prosecution could not be put on the same footing as the prosecution had suggested, since the prosecution bore the burden of proof to the criminal standing of Mr. Lubanga whilst the accused was entitled to remain silent and was protected from self-incrimination.
Judges stated that intermediaries of the defense should not be subject to similar orders for disclosure as the prosecution’s intermediaries. Moreover, the judges noted that the defense had averred that Cordo had never acted as their intermediary.
Tomorrow, the prosecution’s ‘intermediary 321’ is expected to commence his evidence. He will be questioned about his alleged role in coaching and bribing witnesses.