Tuesday, 1 June 2010- Defence calls its last witness in support of the abuse of process application

In its attempt to discredit Prosecution witnesses´ testimonies, the Defence has provided various school reports to show that at least seven witnesses who claimed to be child soldiers in the UPC lied about the schools they attended.

Lubanga´s lawyers have asked Mr. Etienne Bitanihira Kama-Kama, a school inspector in the town of Bunia, to gather and verify the original records from institutions that the former child soldiers said they attended prior to their conscription into the UPC . Amongst the 20 kg of evidence that Mr. Bitanihira has brought from Ituri province to The Hague, there are registry certificates, annual results and school enrollment registries that include relevant details about each pupil: name, date of birth and date of enrollment or period of attendance. According to the Defence, the information contained in the documents contradicts what seven Prosecution witnesses have told the Court. This is the last witness called by the Defence in support of the abuse of process application.

On 27 January 2010, the Defence opened its case with a serious allegation: "We intend to demonstrate that all individuals presented as child soldiers deliberately lied before this court. Six of them were never child soldiers; the 7th lied about his age and the conditions under which he was enrolled; and the 8th never belonged to the UPC," said the Lead Counsel, Catherine Mabille.

Eight former child soldiers were called by the Prosecution to testify about their conscription and enlistment into the UPC, their active participation in the hostilities and the inhuman treatment to which they were subjected in the military training camps under its control.

During its opening statement in January 2010, the Defence of Thomas Lubanga added another ingredient: the Defence alleged that the intermediaries who collaborated with the Office of the Prosecutor played a corrupt role in this case by instigating or assisting Prosecution witnesses into giving false testimony before the Court. In the Defence´s view, the Prosecution has committed abuse of due process by relying on the statements of dishonest intermediaries when gathering evidence and as a result, the Defence, after presenting its first twenty witnesses, is asking the judges to stop the case.

Throughout its case, different Defence witnesses have supported the allegations made by Lubanga´s Lead Counsel. Defence Witness 16 said in court: "During the meeting with Mr. X, we planned to tell lies," referring to an OTP intermediary. "The lie was to say he [Thomas Lubanga] had enrolled children in the army and I myself was amongst them [...the intermediary] said to me I had to tell the investigators that I had been a soldier [...that] I saw young children in the army and that people who I knew were enlisted in the army."

The matter of the intermediaries entered the mix on 16 June 2009 when Prosecution Witness 15 admitted in Court that he had lied to the ICC investigators; he further implicated a third individual who he claimed was involved in the fabrication of evidence. At that time, the Chamber immediately suspended Witness 15´s examination and ordered a new 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 investigators and he had lied about being a soldier in the UPC.  On 17 March 2010, Witness 15 reappeared in court to continue giving evidence. He maintained what he had said in Court, that an intermediary who cooperated with the Office of the Prosecutor bribed him to lie to the ICC investigators. The question of the intermediaries, their identities and their role in this case then became crucial.

In light of these events and in order to confront the allegations made by the Defence, two intermediaries and one investigator of the Office of the Prosecutor will testify in the trial immediately after Mr. Bitanihira´s testimony. As regards the intermediaries (316 and 321), the Chamber - rejecting the Prosecution´s application - ruled that a Defence representative could be present at the interviews that the Prosecution will conduct with the two intermediaries. "Given the recent developments as regards the position of intermediaries generally, and these two intermediaries in particular, the Defence has a substantial interest in witnessing the interviews that will in all likelihood take place shortly before their testimony," said Judge Fulford. The judge also pointed out that "the intermediaries are to give evidence at the express request of the Chamber [...] although the Defence asked the Chamber to call them."

The meetings, which will take place prior to the commencement of the familiarisation process, will allow the Prosecution to explore with the intermediaries the allegations made against them as well as to prepare the examination.

During yesterday´s hearing, Judge Fulford raised another issue connected to the matter of the intermediaries. Witness 03, interviewed in 2005 as a suspect and who was expected to answer additional questions on his relationship with the intermediaries, refused to participate in an interview with the Prosecution that was meant to take place two weeks ago. "The [Prosecution's] attempts to arrange an interview with Witness 03 have failed because of a clear, apparent disinclination on his part to cooperate in any kind of interview process," said Judge Fulford. The Chamber invited the trial participants to make suggestions concerning the measures to be adopted with respect to Witness 03.

The judges will have to wait for two or three weeks until the intermediaries arrive in The Hague. Therefore, as Judge Fulford stated today, "it is imperative that the investigator called by the Prosecution is available immediately; "tomorrow morning we must have an agenda."   But the Prosecution team is not able to provide this information.  "The two more appropriate individuals are no longer in The Hague, and no longer in Europe," explains Trial Lawyer Nicole Samson. "That would have an impact on the timing of their appearance. So we don't know if we can confirm their availability before tomorrow morning." Presiding Judge Fulford admitted he would be surprised if the Prosecution could not make the deadline, as it was this team who requested to call the investigator. "You might have somebody in mind," said the Judge to Ms. Samson. "I ask you to go beyond these two investigators and address who else can assist the Chamber on this."