An investigator for the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) and an alleged former child soldier testified this week about their relationships with intermediary 316.

The investigator, Nicolas Sebire, also known as witness 583, is accused by the defense of coaching and bribing individuals to falsely claim they were child soldiers in the Union of Congolese Patriots (UPC) headed by Thomas Lubango Dyilo. In earlier testimony, intermediary 316 denied defense allegations.

Lubanga is on trial for the conscription, recruitment, and use of child soldiers during the 2000-2002 conflict in the Democratic Republic of Congo. Presently, Trial Chamber I is hearing evidence on alleged abuse of process stemming from the dramatic reversal by witness 15, presented by the prosecution as a former child soldier, that he lied after being coached by intermediary 316 who was spending money on him.

Sebire testified that the OTP was forced to use intermediaries to make contact with potential witnesses due to restrictions on ICC movements in-country. Intermediary 316 was critical to OTP efforts because of his contacts in the UPC. He introduced investigators to witnesses 35 and 38, allegedly former child soldiers who testified for the prosecution.

The former OTP investigator testified that he worked with intermediary 316 for two years and found him believable. When defense counsel referred to a May 2006 email from Mr. Sabire to his investigation team, stating that it was difficult to justify payments to intermediary 316 and that some of the information he provided was “bizarre,” Sebire insisted it did not reflect on the intermediary’s reliability. It was normal to cross-check information.  

‘Bizarre’ meant ‘surprising,’ not ‘suspect,’ he said. It does not mean the information was bad. A decision to limit intermediary 316’s access to people in the ICC was taken to assure a centralized point of contact following use of this intermediary by other ICC employees that interfered with his investigation, Sabire explained.

 After introducing the OTP to witness 35, a commander in the UPC, intermediary 316 facilitated his travel to Kampala, Uganda for interviews, according to Sebire. There was an incident, discussed in detail in private session, where witness 35 complained that intermediary 316 took a portion of money allocated by the OTP to witness 35 for hotel and food expenses. Intermediary 316 allegedly did so because the witness used payments made to him for other purposes. Though Sabire was unable to go to the hotel to confirm this, he found the intermediary believable.

Defense counsel Jean-Marie Biju-Duval raised another allegation by witness 35 that intermediary 316 promised the OTP would purchase all products he needed. During his subsequent interview with witness 35, Sabire secured his agreement on record that the OTP had made no promises to him.

Defense counsel sought to show that witness 35 was a fraud and not the UPC officer he claimed to be. Since he had no opportunity to review the transcripts of his interviews with witness 35, Sabire could not recall errors witness 35 allegedly made, such as not knowing the name of the military arm of the UPC or of his commander.  As a result, cross-examination on these points provided little useful evidence for the Chamber to consider. Mr. Sabire did agree that he was not impressed by the way witness 35 told his story, though he did not necessarily question his factual statements.

During the week of November 15  – 19, 2010, the deposition of witness 582, an OTP investigator, was taken in closed session.

Prosecutor Manoj Sachdeva took witness 38, another alleged child soldier, step by step through his contacts with intermediary 316, who facilitated contacts with the OTP, secured travel documents, and made travel arrangements.

Occasionally, intermediary 316 called him to see how he was doing. After investigators provided him with a mobile telephone to contact them directly, witness 38 was rarely in touch with intermediary 316. The witness stated that at no time did he discuss with ‘intermediary 316’ the substance of his interviews with the OTP investigators.  

In April 2007, the ICC moved him to Kinshasa for safety after he received numerous threatening telephone calls because of his cooperation with the ICC.

Defense counsel Marc Desalliers asked witness 38 about payments he received from the ICC. The court paid for his accommodation and medical expenses and one year of school expenses, he replied. Other than that, he was given cash to buy food for which he signed receipts.

At the close of direct examination, the prosecutor led witness 38 through a series of direct questions on whether intermediary 316 ever asked him to give a particular account or gave or promised him a reward for what he would say or made an agreement with him to provide false stories to the ICC. The witness emphatically said he had not.

“I only said what I knew or had done. I did not blow anything out of proportion or leave anything out. It is a question of morality, of ethical standards. I am from a Christian family. . . . Lying is a sin. I would rather have problems with myself than problems with morality.”

This week, the Chamber also denied the defense request for more time in which to file an application to dismiss the case for abuse of process.  The additional testimony of witness 598 “will not add in any significant way to matters already known by the defense,” presiding judge  Adrian Fulford stated.

The prosecution requested that witness 598 be substituted for witness 555, who was to testify about the alleged climate of fear and intimidation in Bunia among individuals alleged to have cooperated with the ICC. Witness 555 subsequently refused to testify.

Defense written submissions are due December 10, 2010. The prosecution has until January 31, 2011, to respond and victims’ counsel, if they choose to do so, must file by that date as well. The Chamber allowed prosecutors a longer period due to the large number of factual issues they must address. 

The Chamber will begin hearing testimony of witness 598 at 14.00 hours on Wednesday, December 1, 2010.