On June 1st …
Judge Adrian Fulford told the prosecution to deliver their investigators, who have been requested to give testimony. Prosecutor Nicole Samson explained to the Court difficulties the prosecution might face in contacting those individuals, “One, even two, of the individuals that the chamber had itself suggested might be the most appropriate individuals are of course no longer [at] The Hague, no longer in Europe. And we are seeking to establish contact with them to determine their availability.”

The next day, Lubanga’s lead attorney, Catherine Mabille, told the Court the defense was still waiting for information regarding the intermediaries, We made the request on May 18 [2010] but we have received no reply.”

Prosecutor Manoj Sachdeva stated the OTP would call back several witnesses to rebut some of the evidence put forth by the defense, including Witness 38, who the has told the prosecution that nothing inappropriate (being offered or taking bribes) happened between him and the intermediary with whom he had worked.

On June 7th …
The Court stated that the case will resume Thursday, June 10th because there are no witnesses ready to testify.

On June 10th …
The defense explained that they will focus on questioning the witnesses the prosecution plans to call back to rebut evidence given by the defense on two main issues: “The responsibility of the OTP in relation to its own investigations, the way they were conducted and their responsibility for the situation that we see today” and “the second aspect and most important is: what is the responsibility of the OTP for this possibility of hindering or providing a remedy to this process of corruption,” said defense attorney Jean-Marie Biju-Duval.

On June 14th …
Prosecutor Nicole Samson asked the witness, an investigator from the OTP, if he paid intermediaries to which he responded that if and when an intermediary requested payment, he would work with his supervisors in The Hague to determine if the payment should be granted. In particular, Samson asked the witness if he had ever paid an intermediary anything other than travel expenses. The witness replied, “No. The money paid to Mr. X during all these operations was essentially for his transport to get the children [former child soldiers], bring them to me, and take them back.”

Samson further questioned the witness if Mr. X had ever told him that the children Mr. X had met with were lying. The witnesses told the Court, “If he had told me of such a thing, I would have reacted immediately. I would have informed my bosses that such a child who was sent to me, who was questioned, was a not a child soldier, or had lied.”

The next day, the witness continued with his testimony telling the Court that he did not tell children or adults what to say to investigators and that he never promised the children nor their parents anything in return for their testimony.

On June 16th …
The defense reviewed in detail payments from the OPT to intermediaries based in the Democratic Republic of Congo. Several defense witnesses stated that OTP intermediaries, in particular intermediary 143, bribed and coached witnesses.

The next day, the defense requested the identities of the three intermediaries, who will give testimony on the issue of alleged corruption, be revealed by the prosecution.

On June 24th …
Prosecutors requested that Lubanga’s cousin, known as Cordo, give testimony concerning his role in intimidating witnesses to give false testimony. Prosecutors are purporting that Cordo acted as an intermediary for the defense.

The following week, Lubanga’s attorneys opposed Cordo giving testimony and the judges declined to summon Lubanga’s cousin for testimony.

A second intermediary testified before the Court that he did not bribe nor did he coach witnesses as to what to say to investigators or in Court.

On July 7th …
Judges Adrian Fulford, Elizabeth Odio Benito, and René Blattmann issued another order for the prosecution to reveal the identity of intermediary 143 to the defense.

On July 8th …
Judges stay proceedings because of the “unequivocal refusal to implement the repeated orders” requested by judges for the disclosure of the identity of intermediary 143. Prosecutors stated that revealing the identity would put the intermediary’s life in danger. The judges ruled that they did not believe that if his identity was revealed that his life would be in danger.

The judges further stated that in failing to reveal the identity of the intermediary despite repeated demands from the judges to do so that the prosecution had abused the Court process. “Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework,” the judges stated.

On July 15th …
The judges have ordered the release of Thomas Lubanga Dyilo. Lubanga will remain in detention, however, if the prosecution appeals the release order.

Judge Adrian Fulford stated, “The chamber has imposed an unconditional stay of proceedings, and bearing in mind the wholesale uncertainty of whether this case will restart at some future time, together with the length of time the accused has already been in custody, anything other than unrestricted release will be unfair.”

He further stated, “If an appeal is filed within the five-day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the appeals chamber has resolved whether this order granting release is to be suspended.”

Paolina Massidda, the Principal Counsel of the Office of the Public Counsel for Victims, told the Court in response to the Judges order that, “The situation currently prevailing in the eastern part of DRC still unstable, the legal representatives of victims would also like to draw the chamber’s attention to the fact that the accused over the course of the trial learnt the identity of all the witnesses from the OTP as well as the identities of many victims taking part in this trial. In this particular case, the charges still stand against the accused. They are serious charges and we must continue to take into account the seriousness of these charges. Thus, we are asking the chamber to uphold and continue the detention of Mr. Lubanga.”

Prosecution coordinator Sara Criscitelli argued that Lubanga is a flight risk,

“If released there’s no way to guarantee his return. And with the appeal there is the possibility that the judgment on appeal would be reversed and the case would be back to trial and a person has been released and may not be in the jurisdiction,” Criscitelli stated.

The prosecution has requested that Lubanga’s release be overturned by the appeals judges as the prosecution believes he is a flight risk.

In the appeal submitted July 16, Prosecutor Luis Moreno-Ocampo stated, “In its decision on release, the [trial] chamber did not purport to conclude that the risk of flight has abated or indeed address risk of flight at all. Thus, the previous findings regarding the possibility of flight are undisputed and undiminished” … “There is thus a clear and present danger that if the accused is released, but the appeals chamber subsequently overturns the decision, the court will not be able to regain custody of the accused.”

Appeals Judge Akua Kuenyehia requested that she be excused from all appeals regarding the Lubanga trial as she had been involved in the pre-trial phase of the case. Judge Sanji Mmasenono Monageng has been assigned to replace her and therefore the judges who will hear this appeal are Sang-Hyun Song, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.

This post was created by Kate Davey through sourcing from the reporting of Wairagala Wakabi and Tracey Gurd from lubangatrial.org and from one of our partners AEGIS Trust.