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ICC's controversial Rule 68 used to nail DRC warlord Thomas Lubanga

By Nzau Musau | December 6th 2015

The controversial Rule 68 of the ICC allowing introduction of prior recorded testimony of absent witnesses was deployed against jailed Congo DRC warlord Thomas Lubanga Dyilo.

The rule, in its original state before the 2013 amendments to expand its scope, was deployed in the Lubanga case in two instances on December 13, 2010. Two days later, former Prosecutor Moreno Ocampo announced his list of six Kenyan suspects.

Those two instances, according to court records, are the only instances their court had successfully used the Rule to admit prior recorded evidence.

“Rule 68(a) has only been successfully invoked twice in the history of the Court, and even then the provision was applied under arguably unusual circumstances,” a report tabled at the 12th session of Assembly of State Parties in 2013.

In its original state, the Rule allowed for introduction of prior recorded testimony but only if both the prosecutor and the defence had the opportunity to examine witnesses during the recording.

Legal experts who drafted the amendments to expand the scope of introducing prior recorded testimony said the requirement that the parties should have had opportunity to examine the witness was too demanding and “difficult to satisfy.”

“The difficulty in fulfilling the conditions of rule 68(a) is evidenced by the limited jurisprudence applying the provision,” the report added.

In the Lubanga case, the rule was used to admit prior recorded testimony of two witnesses, 0582 and 0598. The two witnesses recorded their statements at the Hague in November of that year supervised by a legal advisor of the trial division and attended by defence and prosecution. The recordings were admitted later on in the year.

“Part of the legal basis provided by the Chamber for conducting depositions in this way was by reference to rule 68(a) of the Rules, and, notably, the parties agreed in advance to this procedure,” an ICC document circulated on application states of Lubanga’s case.

Witness 598 had been called in to replace another witness 555 who had been interfered with. The prosecutor had intended to use witness 555 as a “rebuttal witness” to provide evidence on the pressure and intimidation applied by Lubanga’s ethnic group- Hema- on ICC witnesses.

However the witness became unavailable to testify and was withdrawn. The prosecutor replaced the witness with 598 with the approval of the court.

The court also adopted the prior recorded testimony of witness 555 in witness 598’s testimony since they were slated to give evidence on essentially the same matter of witness intimidation. The admission of witness 555 written statements was however done under Article 69 (4) of the Rome Statute.

Article 69 is the same article the presiding judge in Deputy President William Ruto’s case- Chile Eboe-Osuji said admitted the prior recorded testimony of unavailable witnesses. The other judges admitted it under Rule 68.

In March 12, Lubanga made history as the first person to be convicted by the ICC for recruiting and using child soldiers. He was handed a 14-year sentence which was later confirmed by the appeals chamber on December 1, 2014.

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