Wednesday, 17 March 2010 -Prosecution intermediaries in the eye of the storm

A news report about the trial gatecrashes the court proceedings. The Lubanga Defence team brought to the Chamber´s attention an interview that Béatrice Le Fraper du Hellen, Head of the Jurisdiction Complementarity and Cooperation Division of the Office of The Prosecutor, gave to the press a couple of days ago. In the story the journalist quotes  Ms. Le Fraper du Hellen as stating that the prosecution intermediaries "are very committed persons, very supportive of international justice," and that the Defence´s allegations will be refuted by the prosecution in court.. Throughout its case, Lubanga´s lawyers have claimed that the intermediaries that cooperated with the Office of the Prosecutor induced witnesses to fabricate false testimonies. "The intermediaries are the ultimate line of defense for the Defense because they have no other argument [...]´They haven't proven that," Ms. Le Fraper du Hellen is quoted as saying, adding: "Nothing is going to happen. Mr. Lubanga is going away for a long time."  Her comments irk the Lubanga Defence team and the three Judges.

"I am unaware of any evidence that has been served by the prosecution in line with those very clear and unequivocal indications," says Presiding Judge Fulford. "The integrity of the intermediaries and their role is now a critical ingredient of this trial," he says. Therefore "the Chamber imposes the obligation to the Prosecution to serve all the evidence on which those clear assertions were founded by Ms. Le Fraper du Hellen. [...] If it is alleged by the prosecution that [the intermediaries] are very committed people and very supportive to international justice [...] it is important to have this issue properly tested before us to see whether or not that suggestion is justifiable."

The Judge moves on. There are other observations by Ms. Le Fraper du Hellen about the outcome of the trial and the sentence which cause him discomfort.  "Do you think is appropriate for the Prosecutor mid way throughout the trial through his representative to be telling the public and the judges" -he emphasizes- " what the result is going to be of the trial over which we are presiding?" asks Judge Fulford to prosecution lawyer Ms. Samson, who bears the brunt of his telling-off.

The Judge turns to another quote attributed to Ms. Le Fraper du Hellen, that "Mr. Lubanga is making signs to the audience. He is smiling, he is doing a lot of body language - it is very terrifying for the children to testify in front of him,"

Judge Fulford says the Prosecution has never put this to the Chamber:

"If you are alleging that, I want to see copies of the videos," says Fulford. "If this is suggested, that means [...] the three of us we are not conducting our functions properly." The Judge concludes with a reminder that some time ago the Chamber "gave a very firm indication that the judges do not expect to see satellite litigation in the press with the issues [they] are considering". This is an "inappropriate activity for the Prosecutor to undertake. [...] We are extremely disturbed about this," says Judge Fulford.

The matter of the intermediaries entered the fray on 16 June 2009 when Prosecution Witness 15 said in Court he had lied to the ICC investigators. He further implicated a third individual whom he claimed was involved in the fabrication of evidence. "The statements of Witness 15 have brought us to the idea that there is need to investigate on the persons who worked with the witnesses. [...]This question of the identity of intermediaries is a crucial one," said Defence Counsel Mr. Biju-Duval after the witness appeared in court.

At that time, the Chamber immediately suspended Witness 15´s examination and ordered a fresh statement to be taken. In the presence of defense and prosecution lawyers, Witness 15 then stated that he had provided a false identity to the OTP, including his name, his wife's name and the names of his parents. He said he had never trained at the UPC training centre in Mandro and did not in fact witness any of the activity at the camp. He also stated that he had lied about being a soldier in the UPC and he had never met certain individuals connected to the UPC as he had told the OTP investigators.

Today Witness 15 reappears in court to continue giving evidence. He maintains his status of Prosecution witness but the nature of his questioning changes. The Chamber recognised that that "it would be unfair [...] if the Prosecutor is restricted to neutral questions" imposed by the examination-in-chief. Therefore, the Chamber believed that "in these particular circumstances, it is undoubtedly appropriate for the prosecution to ask ´closed, leading or challenging questions´ -according to the cross-examination procedures- in order to test the credibility of the witness. The Prosecution considered him a "hostile witness."

Two statements were taken to Witness 15 in 2005 and 2006. Afterwards, the OTP remained in contact with him. However at no time did Witness 15 indicated that any information in his two signed statements was incorrect. Not until June 2009 when he came to testify before this court. "You must understand me, "says Witness 15 to Ms. Samson. "My situation was difficult. I could put myself at risk and I could damage my relation with Mr. X. If Mr. X had told me to tell the truth I would have," he says. According to the witness, Mr. X bribed him to lie to the ICC investigators. "I was not able to say this in Congo [...] Mr. X and other individuals came into a plan. The best place to explain everything was here, in the Office of the Prosecutor in The Netherlands."

But the Prosecution alleges that Witness 15 gave to the investigators details about particular places such as the UPC military training in Mandro.

Witness 15 tells Ms Samson that before each interview with the investigators, he met the intermediary. "He told me everything I had to say," says the witness. Some other stories were made up by his relatives and friends. "Say you were in that place," the witness says he was told. "I´ve never been in Mandro camp. I´ve never been a soldier. I explained that to you last year," says the witness, referring to his new statement in June 2009.

But Ms. Samson insists. She explains that during the interview with the investigators the witness was asked to listen an audio-cassette. "You listened the tape and you indicated that it appeared to you that it was the attack to Mongwalu by the UPC," says Ms. Samson. The witness recognized the battle because of the voices of the officers and the way in which the orders were given. According to Ms. Samson the witness also provided details about child soldiers in the UPC headquarters. "You told the investigators [...] you recognized them because they were very small and the arms were very big for them. [You said] some of them worked as bodyguards of Bosco [Ntaganda], [Floribert] Kisembo and other commanders of the UPC." "Yes, that´s what I said," confrims the witness.

As a last move before concluding her examination in private, Ms. Samson wants to make clear that the ICC investigators did not put any pressure on the witness; that they did not offer the witness any money or false promises in exchange of information. "[The investigators] did not tell me what I had to say," assures the witness. "They did not know what happened between me and this individual -the individual who mislead me to lie to them-."

The Lubanga Defence team commences its questioning in private session.