Prosecution’s Response to Defence Evidence

The Prosecution contended that the Defence had submitted little documentary evidence and that very little of it went to the core of the Prosecution case, ie the criminal liability of Mr Lubanga for the crimes charged. Specifically, the Prosecution mentioned that much of the Defence evidence was irrelevant and challenged it on several grounds, including: that it dealt with a time period outside the one relevant for the charges in question; that it consisted of documents produced by the Union des Patriotes Congolais (UPC) itself which amounted to propaganda; and that no neutral third party evidence was adduced.

The Prosecution specifically challenged the authenticity of an email referred to by the Defence, which detailed the planning of an operation to exterminate the Hema people. The Prosecution suggested it unlikely such information would be contained in such an insecure form of communication. The Prosecution further said it had submitted the email to the Paris Court of Appeal for forensic examination, which affirmed that it had been created in Rwanda, a place where the Prosecution contended the author would have been unlikely to be present. The Defence objected to the submission of ‘scientific evidence’ to which it could not respond at this stage of the proceedings. Judge Jorda presiding stated that the Chamber would consider the issue of the admissibility of the evidence and that the Defence would have the opportunity to respond in written observations at a later stage.

The Prosecution also dealt with a request from the Chamber to respond to the Defence allegation that it was improper to use the term Hema-Gegere in the charging document, as it was pejorative and incites racial hatred. The Prosecution contended that this term was used regularly by academics and international and national human rights organisations to refer to the ‘Hema North’ from the Djugu area of the Democratic Republic of Congo (DRC), as distinct from the Hema South. The Prosecution submitted several documents containing this term to support its argument.

The Prosecution finally mentioned that the Defence team had made factual statements on behalf of Mr Lubanga without bringing evidence in support. The Prosecution alleged that the Defence team attempted in effect to become witnesses for Mr Lubanga. The Defence intimated that it wished to intervene and Judge Jorda prevented the Prosecution developing this argument further, stating that it was anticipating final arguments.

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