Defence Preliminary Issues and Opening Statement

The day prior to the commencement of the hearing the Defence filed an application for an adjournment, stating that it had not had adequate time to prepare for the hearing and citing a number of concerns regarding the proper conduct of proceedings and jurisdiction/admissibility issues. The Pre-Trial Chamber refused the application in writing on the evening before the hearing stating that: ‘the Defence shall have the opportunity to address and discuss such issues during the sessions scheduled for 9 and 10 November 2006.’

The Defence therefore opened its case by requesting an adjournment orally and raising a number of preliminary issues. The Chamber ruled upon these issues orally in open court at the end of the second day of the hearing (10 November), again rejecting the Defence request for an adjournment. A summary of the main issues ruled on are outlined below:

The Defence contention that the hearing should be postponed pending the resolution of outstanding appeals (including on jurisdiction) was rejected on the basis that the Defence had not requested for the appeal or leave to appeal decisions to have ‘suspensive effect’. Both Prosecution and the representative of the group of three victims raised this argument with which the Chamber concurred. The Chamber added that should the Appeal Chamber make decisions on any of the pending issues during the current hearing they would be taken into account by the Pre-Trial Chamber.

With regard to an allegation that certain Prosecution evidence obtained in the context of a search and seizure operation of the DRC authorities should be declared inadmissible (an Appeal Court decision of the DRC had ruled the operation illegal), the Chamber decided to examine the merits of the issue after the hearing. The Defence alleged that this evidence should be excluded under Article 69 of the Statute as being obtained by means of a violation of the Statute or ‘internationally recognised human rights’ and that to admit it would ‘seriously damage the integrity of the proceedings’. (During the subsequent hearing the Chamber ruled - following a Defence inquiry - that evidence obtained during this operation should be identified as such when presented by the Prosecution).

With regard to a complaint by the Defence that a camera was present in the interview room when he met his client at the Court, the Chamber ruled that the camera must not be used but that the interview should be observed at a distance by security staff as specified in the RPE.

With regard to a complaint by the Defence that his client was referred to as the ‘accused’ in an ICC newsletter, the Chamber ruled that this was unacceptable and that the Registry must issue a public statement to correct the reference.

Although the Chamber accepted that most exculpatory evidence was disclosed to the Defence, it was also ruled ‘unacceptable’ that the Prosecution had not sought consent from some of the providers to release a number of documents to the Defence and they were ordered to do so.

The Chamber also ruled that the Prosecution must inform all witnesses whose written statements it intended to use at the confirmation hearing of that fact.

The Defence challenged the use of ‘confidentiality agreements’ by the Prosecution. Article 54 of the Statute allows the Prosecution to agree not to disclose certain information provided in confidence. The Chamber ruled the Defence had not proven that such agreements had been used by the Prosecution to deprive the Defence of information.

The Chamber also ruled that a staff member of the Office of the Prosecutor (OTP), who the Defence accused of bias against Mr Lubanga, was not working at the OTP at the relevant time and it had not been proved that he had had any effect on the investigation.

Certain other issues raised by the Defence relating to staffing, electronic communications, Prosecution ex parte applications and interpretation facilities were stated to have already been dealt with by the Chamber.

After rulings had been made on these preliminary issues, the Defence was asked by the Judge to begin the presentation of its case. The Defence described Mr Lubanga as someone whose principal goals were ethnic reconciliation, peace and the equitable distribution of natural resources in the DRC, adding that many saw him as someone with the power to stop the violence.

The Defence commented on the fact that much of the Prosecution case was based on the evidence and reports of non-governmental organisations, whose views could not be taken as independent, referring to the fact that they are financed by governments.

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