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Interview with Fatou Bensouda, ICC Deputy Prosecutor

ICC Deputy Prosecutor Fatou Bensouda has been present in court almost every day of the prosecution’s case against Thomas Lubanga, which concluded on July 14. She recently spoke to the Lubanga Trial website about the controversy over sexual violence charges, the challenges of witness protection, and why victims’ participation is important.

Rachel Irwin: The issue of sexual violence in Lubanga’s training camps has been constant throughout the trial, despite the fact that Lubanga does not face related charges. The prosecutor focused on it in his opening statements, and most witnesses have testified about the rape of young girl recruits. In May, the victims’ representatives asked judges to “re-characterize” the charges against Lubanga as sexual slavery and cruel and inhumane treatment, since they say that existing evidence indicates these additional crimes. On July 14, the judges decided that this is a legal possibility. Can you comment on these developments?

Fatou Bensouda: I think we have all stressed since the opening of the trial on January 26 the importance of the issue of sexual slavery and sexual violence in the context of child recruitment. We also had indicated that evidence [of this] would emerge as the trial proceeds.

Our position has always been that, if the accused is convicted on the existing charges of enlisting and conscripting child soldiers, the chamber, in determining the sentence, would at least take this into consideration as an aggravated circumstance. This has always been our position and we think taking [sexual violence] into consideration would at least warrant a very severe punishment. We hope that the judgment will reflect the reality of sexual violence and inhumane treatment that has been visited upon the [child soldiers].

But as regards the July 14 decision of the trial chamber… we have previously said it is really the judges who should trigger the Regulation 55 procedure [which specifies the process of re-qualifying existing charges], and we will make submissions at the appropriate time. Unfortunately, I have to stop there because this is a matter that is being litigated.

RI: Since the trial has focused so heavily on sexual violence, why weren’t those charges brought in the first place?

FB:  First of all, I want to say that we investigated extensively. We had gathered a large amount of evidence, which has produced numerous leads. In February 2006, the office took the decision that we were going to charge Lubanga with enlisting and conscripting children. At that time the opportunity of arresting Lubanga presented itself and the evidence we were very confident about was enlisting and conscripting children. [Our investigations] took place under very difficult circumstances [in terms of] the security challenges and the heightened risks for victims. Given these challenges … and, [with] the approaching “confirmation of charges” hearing, we had to make a decision. We decided that our child soldier case was very strong… and this was evidence that we could present comfortably before the court… and we proceeded.

RI: Some observers have noted that you could have brought sexual violence charges even after the confirmation of charges hearing. What is your response to that?

FB: I would say the same thing. As a prosecutor, one has to be very confident of the charges that you bring. What one can say in the media about the crimes committed is quite different from the evidence that you present before judges. I think that, even after the hearing, [people] talk about these current charges like they are not so important. I disagree. I think they are very important. I think they are very serious and have given a lot of focus to these kinds of crimes – not only locally, but at the international level. And what is visited upon the children – the life of these child soldiers – has come up very strongly in the trial. I think we went for the charges for which we had the evidence.

RI: Sexual slavery and cruel and inhumane treatment now have the possibility of being added to the indictment. Can you give us a sense of the prosecution’s position on this?

FB: Right now it is before the court. We will make the submissions [to the judges] and take a position [then].

RI: Could you talk a bit about what happened with the first witness? Everyone remembers when he took the stand and said he had lied to investigators and was coached on what to say.

FB:  The main issue that arose with the first witness was not having adequate in-court protective measures so that the witness would not feel intimidated or traumatized.

RI: Are you referring to the fact that the witness came in and Lubanga could look right at him?

FB: Yes. [The witness] came in and at the beginning of his testimony he was able to see Lubanga, and Lubanga could see him. We have come a long way since then, and measures have now been put in place, so that witnesses will not be subjected [to seeing Lubanga face-to-face], especially the vulnerable witnesses. I think we have had our experience with the first witness—who, by the way, came back and gave great evidence. [The process of determining protective measures] is still developing, but with respect to the witnesses who followed [the first one], I think this went pretty well. I think the chamber, the parties and the participants have been able to adjust to it as quickly as [they] could.

RI:  I know that if a witness comes in and sees Lubanga staring at them, it can be very frightening. But when Lubanga is brought into the courtroom only after the witness has been seated and concealed from view, do you think that could be interpreted as being prejudicial to the accused?

FB: Coming from the prosecution, I want to make sure justice is done on all sides. Regardless of whether I’m on the side of the prosecution or the defense, we have to make sure that we contribute to the trial being held fairly. The voices and faces of the witnesses have been distorted, and their real names have not been used in court. But we need to be clear: we hide all of this from the public, not from Lubanga or from the defense lawyers. Lubanga has a computer monitor in front of him. So do the defense lawyers. They are able to see the demeanor of the witness at all times. The identity of the person is known to Lubanga, and known to the defense. As I said, whilst they are testifying, Lubanga is able to watch throughout. Even if there is no direct face-to-face contact, he can see them.

RI: There have been a lot of closed sessions. I understand there is a lot of sensitive information that needs to be guarded, but for observers, it can be very frustrating when there is an entire day you can’t watch.

FB: When we are at trial, all of us take this responsibility of protecting the witness very seriously. Even the defense, when they are questioning a witness, sometimes say: “For the next set of questions we need to go into private session.” They recognize the responsibility that we all have to protect the witnesses. I know the amount of private sessions has been very frustrating, but there is certain information… which, once said, can easily be traced back to the witness.

The chamber has been very transparent and has asked the parties, as much as possible, to make this an open trial. All the parties and participants, and the chamber, have been trying to make it as public as possible, but the security of a witness is paramount. The obligation and duty that the chamber and parties have towards witnesses is paramount. None of what is in closed session is closed to the defense.

RI: What happened with Witness 15, who came to testify on June 16 and instead said he provided the Office of the Prosecutor (OTP) with a false statement?

FB: Witness 15 took the stand and even before giving evidence, he indicated that he had given a false statement to the prosecution. Immediately, the chamber halted his evidence and said that his statement needed to be retaken based on true facts. This was done. The statement is with the defense, the chamber, and the prosecution. I think the witness will be coming back [when the trial reconvenes in October].

RI: Do you know in what capacity? As a defense or prosecution witness?

FB: The chamber has to decide this. Both parties have already discussed this, and we are giving it some thought. The chamber has not given a final decision on that, but I think he will be coming back.

RI: Was this an issue of him actually lying, or was he feeling scared? Or both?

FB: I’m not able to say. It will all come out in October. Just be patient! 

RI: This is the first trial at the ICC and you’ve been in court almost every day. What would you say has been the most interesting or challenging aspect of the trial thus far?

FB:  As you said, it’s the very first trial of the ICC. It’s not like reinventing the wheel all over again, because some of this has taken place in other [international] tribunals. But there is a little bit of difference with the ICC. For example, the issue of victims’ participation is very interesting [because this is the first time victims have been able to participate in proceedings at an international court.  Their lawyers are present in court each day and can advocate for their clients, question witnesses, and file motions].

I think both the chambers – pre-trial and trial – have been giving [the process] a lot of thought. The modalities and scope have been fleshed out to a great extent. I think it was a challenge for all of us, including the chamber, but what is interesting is the full participation of the victims at trial. This is not a privilege – it is a right that they have under the [Rome] statute [which governs the ICC]. None of us really knew how it was going to work out in the end, but I think it is going smoothly. The chamber is controlling it by giving them the rights that they have, whilst at the same time limiting how much they can do. I think it’s a good thing that this is happening and [that victims’ lawyers are] examining the witnesses.

RI: It’s interesting to hear you say that, because I’ve heard that the victims’ representatives have sometimes felt like the OTP wasn’t so thrilled with the idea of them participating.

FB: That is an incorrect perception. I think, throughout the proceedings, wherever we’ve meant to disclose to the victims, we’ve done it without any problems. The victims’ representatives have consulted us on several issues. The OTP does not have any misgivings about the victims participating. On the contrary, we have tried to support this as much as we can.

[To read about the views of Ms. Catherine Mabille, Thomas Lubanga’s defense lawyer, please go to: http://www.lubangatrial.org/2009/09/24/qa-with-thomas-lubanga%e2%80%99s-defense-lawyer-catherine-mabille/]