Presiding Judge Adrian Fulford, hearing the case against Thomas Lubanga at the International Criminal Court, (ICC) has again raised concerns about the conduct of the prosecution in failing to identify a witness. The prosecution apparently had interviewed a witness, determined the testimony was not credible, but did not disclose the information to the defense. The prosecutor has an affirmative duty to disclose exculpatory information to the defense.
The trial has previously been suspended for several months because of the non-disclosure to the defense. In giving the prosecution until Friday November 5 to make the disclosure, Judge Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,”
Thomas Lubanga Dyilo is the first person to face trial at the ICC. He was brought to the court in 2006. Lubanga was the leader of the Union of Congolese Patriots (UPC), and is the first person to face trial at the ICC in The Hague, Netherlands. Lubanga is accused of the war crimes of using and conscripting child soldiers. The trial began in January 2009, the defense began presenting its case in January 2010. The case has been delayed several times, and just resumed after a lengthy delay when the trial court suspended the case over concerns that Lubanga could not get a fair trial because of the repeated refusal of the Office of the Prosecutor to disclose the identity of a prosecution investigator accused of bribing witnesses. The other delays are recounted here. The appeals chamber determined that the case could continue, and that the court could impose sanctions on the Office of the Prosecutor to induce compliance with the court’s orders.
Testimony in the case is expected to conclude this month. The defense is to complete its written argument requesting dismissal of the case because of prosecutorial misconduct for not properly disclosing witnesses or complying with its obligations.