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Katanga and Ngudjolo Chronicle # 2: Head of the OTP Investigation Team: “The Victims in this case who eventually have decided to speak to us and to testify in this trial, they clearly need to be commended in their courage to do so.''

Please find Katanga and Ngudjolo Chronicle #2, which was originally published on the Aegis Trust website.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

The first witness of the second trial concerning the DRC takes the stand. The image is distorted but the voice is perfectly clear. It belongs to a woman. It is the head of the group of investigators assigned to this case who, upon the request of the Chamber, will shed some light on the investigations conducted in Ituri.

“The witness now has the floor to provide a general overview of her testimony. We are now listening to you,” says Presiding Judge Cotte.

The witness has prepared a presentation offering an overview of the evidence collection procedures in the investigation. The investigation started in approximately May 2006, aiming to look at the crimes that had taken place in the region. So, according to the witness, Bogoro was not the sole focus at the beginning, even though the Prosecution later presented a very concrete case claiming it was.

Following the opening of the investigation, the so-called ‘Joint Team’ of investigators, prosecutors and cooperation staff, was put together to conduct the investigation. They were faced with several different challenges.

“I will first discuss the security situation and witness protection issues which have been challenging in the course of this investigation,” says the witness. According to the head of the group of investigators, the security situation in the eastern DRC was a constant source of volatility due to the presence of active militia groups in the operational areas. That had an impact on their missions, on the access to the areas in which they wanted to operate, and also on finding witnesses and witness management. “Our witnesses have also been subjected to clear threats in the course of this investigation. On the one hand, the feeling of threat that a witness has is subjective. A witness or a source can feel that he or she will be treated as a traitor in his or her own community, and they can fear reprisals. But, on the other hand, some of the threats have been very real. They have been objective. There has been clear intimidation of our witnesses in the field and there has been a foreseeable risk of physical harm also.”

In addition to the witnesses, the OTP staff have also faced threats in the field. “OTP investigators are also relatively identifiable in the field. The OTP does not conduct secret missions to the field and it is still very likely that we are identified and this can be detrimental to our witnesses.”

Another major challenge the OTP has faced has been interviewing vulnerable witnesses. “Despite the fact that the OTP tries to take all possible precautionary measures to provide assistance for victims who might have severe trauma about what they have experienced, there is always the possibility of re-traumatisation through the interview process,” explains the head of the investigators. “Victims of sexual violence are a case in point. These kinds of victims, they often not only fear being branded in their own societies, but they also fear retaliation from their perpetrators or groups close to them. In this type of environment, it has been enormously challenging to find victims who have been willing to speak to a prosecutorial office. The victims in this case who eventually have decided to speak to us and to testify in this trial, they clearly need to be commended for their courage to do so.”

Interviewing a potential witness requires several steps. First, the investigators carry out a preliminary meeting to allow preparation for the full interview. In the course of this first meeting, the OTP collects information in order to test the reliability of the subject and to discover whether he or she has information that could be of use in the investigation. It is also important to know whether the individual might have committed a crime under the Rome Statute.

The full interview usually takes place on a different mission. The witness is given an explanation about the Court and the reasons behind the meeting with the investigators. “We talk about what it means to be a witness and what the process of giving a witness statement is. We explain the voluntary nature of the whole process. If the witness is a victim of crime, then we also explain what it means under the [Rome] Statute,” says the head of the investigators.

Once the witness statement has been completed, it is read back to the witness to ensure the accuracy of the information. The statement is registered and the content is discussed with the Joint Team.

The possibility of using exonerating evidence is an important matter and the Chamber wants to know how the OTP deals with information that may exculpate the Accused. “The Office looks at the collected information and evidence in its possession and tries to find what could be potentially exonerating and what we need to investigate,” says the witness. The OTP is under an obligation to investigate not only incriminating information but also potentially exonerating evidence. According to the witness, the OTP staff reviewed over 16,000 pieces of evidence for this case. This amounts to over 85,000 pages. According to the witness, in April 2008, the OTP made the potentially exonerating material available to both defence teams.

Another essential aspect of the investigations was the number of killings. “When we read the decision of Confirmation of Charges, mention is made of approximately 200 victims, people who were murdered or willfully killed. How did you arrive at that figure of 200 victims? Did you find bodies? Did you examine the site of [the] killings?” asks Judge Cotte.

“The numbers are based on information that we are given by our witnesses who were present at the site during or soon after the attack and who were involved in counting the civilian casualties of the attack. The numbers, of course, are very vague. We do not have access to exact figures. We did not count any bodies and we were not present at the time when the attack happened,” explains the witness.

The OTP never physically counted the bodies. The witnesses testified to this fact. The number is just an estimate. They did not establish the identities of the victims, nor whether they were victims of murder or homicide, rape or sexual slavery, or destruction of property, a relevant matter in the Presiding Judge´s view. “By the time we had access to the crime scene, it was simply a long time from the commission of the crime,” says the witness.

This case focuses on one attack, in one place, with buried bodies, but the Prosecution did not see a need for a full exhumation. It was only conducted partially. “The purpose of doing exhumations in Bogoro was for corroborative purposes,” answers the witness to the questions now put by the defence team of Mr. Katanga.

-“Do you have people of Congolese origin as investigators?” asks Mr. Hooper.

-“No, we do not.”

-“Well, do you have people who are investigators who speak the language of the people who are the subject of your investigations?”

-“I do have French-speaking investigators, yes.”

-“French-speaking. Alright.”

Mr. Hooper wants to come back to the issue of exonerating evidence. “Did you go to any places in Walendu Bindi?” asks Mr. Hooper, referring to the area mainly inhabited by the Lendu and Ngiti community. “Let me just give you some names, because it may help. I’ve mentioned Aveba, Bavi, Gety, Bukiringi, Kagaba, for example?” he continues. “No, we have not visited them, as far as I can remember,” says the witness.

An alleged implication of other actors – the government in Kinshasa, the commanders of the FRDC (the national army), the principle leaders of the rebel militia RCD-KML and senior Ugandan officials – is an important argument raised by both defence teams. The OTP were asked if they had questioned these people.

“No, we have not.”