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June 17, 2010

Wrangling over Intermediary Protection in Lubanga trial

By Cecile Jeffries

The Lubanga trial to date has seen much debate as to whether, and the extent to which, the identity of intermediaries used by the Prosecution in relation to their witnesses should be protected. The issue turns on evidence given by child witnesses formerly associated with armed groups, some of whom have testified in court incriminating the accused, only to backtrack later and claim that their evidence was false, instigated by intermediaries promising financial reward in return for their coached evidence. The Defence claim that disclosure of identities and other information is necessary to root out the truth in the interests of a fair trial. The Prosecution claim that revealing such information would put intermediaries, on whom they rely significantly, and their families at risk, as well as deter them from assisting the Court in the future.

On 19 March 2010 the Prosecution proposed a strategy for dealing with the allegations, which they felt would take into consideration the rights of the accused and also protect intermediaries, particularly those against whom no allegations had been made. The strategy would also safeguard the Prosecutor’s ability to conduct investigations, and put security measures in place in the event that the Chamber ordered their identities to be disclosed. The Prosecution proposed using an ‘appropriate representative’ of the OTP to give evidence on how intermediaries were recruited and used. As far as possible, it would bring intermediaries against whom allegations had been made to The Hague to appear before the Judges in private.

On 31 May 2010 the Chamber issued a decision bearing in mind all the arguments so far. It stated that the Defence’s submissions were not based on mere speculation but on evidence and was unconvinced by the Prosecution’s strategy. Although private hearings are allowed under the Rules, it would be unfair to the accused to exclude the Defence as his participation is regarded as necessary to resolve the complicated factual issues involved. The Chamber’s duty to protect the safety and well-being of people at risk because of their dealings with the Court should not override the right of the accused to a fair trial.

Because only some intermediaries had had allegations made against them, the Chamber proposed dealing with each on a case-by-case basis rather than using a blanket approach towards them as a whole. The disclosure threshold would be whether there were grounds for suspecting that they had been in contact with witnesses who had given incriminating evidence which was in doubt. If so, their identity would be disclosed to the Defence, although the Chamber would also investigate the possible consequences of disclosure for the intermediaries and their families and ensure their protection, as well as consider whether alternative options might be available. The identities of intermediaries who did not meet the threshold would not be disclosed, unless there were reasons to suspect that the intermediary had attempted to persuade a witness to give false evidence.

The Chamber also ruled that the two intermediaries against whom allegations of abuse of process had been made would be called before the court in order to investigate these allegations. Finally, the Chamber requested that an appropriate representative from OTP testify on the way intermediaries were used and ordered a schedule to be provided setting out known contact networks between intermediaries and witnesses and dates of meetings between them.

Comments

I think this is very important to care the victims and rehabition after violence against them. thanks Haram

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