The Lubanga case concerned the use of child soldiers in the DRC. What has emerged from the first 200 or so pages of the judgment is a serious - in fact, overwhelming - amount of misconduct by intermediaries employed by the OTP to help run its investigation in the field. As a result, 6 victims and the father of a victim have had their right to participate in the proceedings revoked. However surprising that decision was, it paled in comparison to the decision to instruct the OTP to open an investigation into offences against the administration of justice based on the case they had presented. The Trial Chamber writes:
A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation....The Chamber hereby communicates the information set out above to the OTP [in order that it may prepare charges for offences against the administration of justice] and the Prosecutor should ensure that the risk of conflict is avoided for the purposes of the investigation.
This is surprising, not because it is undeserved but, because quite a lot of Chambers seem not to mind being taken for a ride. International judges have been known to sit through some of the most farcically perjured testimony without batting so much as an eyelid. Indeed, this Trial Chamber appeared not to mind too much. After all, it sat through evidence that led it to make the following finding:
It was a highly unusual feature of this witness’s evidence that in advance of his meeting with representatives of the OTP in July 2005, he had written the names of some of the main localities he was to mention in his statement on his jeans. When asked about this, the witness gave a distinctly confused explanation, including that he had done it for the “pleasure of it” before he had met the investigator.
And this one:
Each morning, in meetings at the hotel with the intermediary prior to the interview, he was given an outline of the account he was to provide to the investigators. The witness said:
"The intermediary gave me a briefing to use all possible means to hide the exact identity of my parents and my own identity and where I'd gone to school and where I had had military training."
P-0015 indicated that [the OTP's intermediary] told him to hide his Hema ethnicity and his identity (he suggested that the name he was told to use was not a Hema or Iturian name), so that any investigation into his past would be very difficult for the prosecution.
And, the Trial Chamber sat through this evidence, from the intermediary who was perhaps the worst offender:
"From 2004 to date, there is one thing I would like to emphasise and it is this: I have always remained loyal to my government [which is responsible for referring Thomas Lubanga's case to the ICC] in my service. However, there were sometimes perhaps circumstances in which I might have worked outside of this capacity, but I always remained loyal to my government."
Incidentally, this is an intermediary who also lied about his assistant's death, hand wrote a fake threatening letter for a witness to help him leave Bunia, and he met with witnesses prior to their OTP interviews in order to rehearse their evidence with them, to name but a few of his alleged trespasses against the court.
The Trial Chamber blames the prosecution's negligence, in failing to verify and scrutinise these parts of its case before presenting it, for the "significant expenditure on the part of the Court." The Prosecution's role is the misconduct is evident from the judgment (though it will be extremely interesting to see what the investigation turns up). However, it is the Trial Chamber's job to ensure the efficient use of time by the parties. It knew before the judgment what the state of affairs was, so why did it wait until then to call a spade a spade, and why did it let the Prosecution take them for this very long and expensive ride in the first place?
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