A very interesting piece from the Radio Netherlands international justice portal.It's an interview with Thomas Lubanga's defence lawyers complaining about the poor quality of ICC investigations. Essentially they contend that intermediaries working with the court fed false statements to witnesses who subsequently went on to testify in The Hague. The intermediaries aren't investigators, just a liason between the ICC and the victims on the ground in DRC. The defence lawyers say they're planning to ask the trial be stopped as a result of the sheer amount of false evidence presented by prosecutors. The ICC's first-ever case, five years in the making, looks to be on shaky ground if the judges buy the defence arguments.
Here's the original story.
Catherine Mabille and Marc Desalliers represent former Congolese militia leader Thomas Lubanga Dyilo, who stands trial at The Hague’s International Criminal Court (ICC) for conscripting and using child soldiers. The lawyers have complained about ongoing problems during the trial.
By Thijs Bouwknegt
How do you perceive this trial so far?
CM: Some intermediaries have prepared witnesses and told them to present the court with false allegations. It is very difficult for the court to face these kinds of problems. It seems that investigations have not been done properly, which is a big issue. I think that how our case has been handled is exactly what the international court must not do. Right now we are in the middle of our defence, but I think the way things have been carried out so far is very problematic for this court.
What about the credibility of the prosecution’s witnesses?
MD: What we said to the court is that some individuals have given false testimonies on purpose, and we are trying to provide evidence (for this). Some people were being prepared to tell lies. That is a major issue.
In court you have mentioned problems with the ICC intermediaries in Congo. Can you explain this?
CM: Some witnesses said that they were told by intermediaries of the prosecutor to say things. After an investigation, it turns out that the child soldiers brought to court were fake child soldiers. They have been prepared by intermediaries who told them how to tell things to the court. We are now trying to find official documents, like school records, to counter this evidence.
Who are these intermediaries?
MD: We know who some of them are, but we don’t know all of them. The intermediaries are not investigators. They bring people to the investigators of the OTP [Office of the Prosecutor] and facilitate contacts between potential witnesses and the OTP.
How is the ICC compared to the other tribunals?
CM: I would say it is more difficult than working at the ICTR [International Criminal for Rwanda] for a number of reasons. First of all, this was the first case for the ICC, so the statute had never been used before and everything was discussed.
Secondly, there were a lot of organisational problems, for example with translations. When I was at the ICTR, the tribunal was already working for six or seven years, so things were better organised. With regards to the victims, we must beware that they do not become ‘co-prosecutors’.
MD: It will be interesting to see how ICC would handle, say, its 20th case. Right now, it is a learning process for everyone. Victims are a regular part in civil court cases, but at the ICC cases are not build up in the same way as in a civil court.
Right now we have a trial that’s more like a common law trial, where the prosecution presents its case, and then the defence presents its case, and the judges are there to make sure that it’s fair. So if you add the victims to this balance, and give them a role that is equivalent to the prosecution, the balance is gone. It is very difficult to know exactly what their place is in the trial. It will take time to figure this out.
Will there be a 20th case?
MD: I definitely hope so. If not, it would be because the institution could not find a solution to function in the long term. This would be very sad. The world will always need a trial (court) to judge the most serious crimes.
When do you expect to finish the defence?
CM: We would be very pleased if somebody could answer that. The trial cannot go on because the false evidence has been so massive that it is difficult for the judges to go on.
In the first phase of the trial we had twenty witnesses. We have already heard fifteen of them, so we have five more. Then we’re going to ask to the judges for a pause of the process, and will wait for their decision on this.
If the judges want to go on, we will proceed with a positive case, wherein we have ten new witnesses to hear. But I cannot schedule that.
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