Béatrice Le Fraper du Hellen is the Head of the Jurisdiction Complementarity and Cooperation Division of the Office of The Prosecutor (OTP) at the International Criminal Court. She spoke to the Lubanga Trial website’s Wairagala Wakabi about the role which intermediaries played in the war crimes case against former Congolese leader Thomas Lubanga, the view of the OTP on the gravity of the charges of conscripting and using child soldiers, and why the Prosecution will ask judges to jail Mr. Lubanga for a very long time.
Q. Intermediaries seem to be very much in the news lately. What exactly is the role of the intermediaries?
A. They are in the ‘news’ in the courtroom because the Defense has chosen this issue of intermediaries as a line of defense. Intermediaries are people in the field who put the OTP in contact with potential sources and witnesses, and describe to the OTP the situation on the ground. They are just intermediaries. They do not investigate. They are not witnesses. They would be like a person who is dealing with child soldiers and who sees so many child soldiers with horrific experiences and they would tell them ‘there is a possibility, would you want to be in contact with the OTP of the ICC and may be tell your story and make it evidence in the case against Thomas Lubanga Dyilo?’
They are very committed persons, very supportive of international justice. We are very careful about who we choose as intermediaries and the allegations by the Defense against intermediaries will be absolutely refuted by the deputy prosecutor Fatou Bensouda in court. And she is adamant that we shouldn’t think that just because the Defense is saying that some intermediaries might have influenced the child soldiers, it happened.
We have to emphasize the risks which intermediaries take. It is not easy to be in Ituri [province in Congo], telling an [ethnic] Hema child who has been recruited and enlisted and forced to rape and kill by a Hema leader, that he might want to go to the ICC and be a witness. And so their situation is difficult in terms of protection and for that we the OTP admire them very much. But it should be very clear that they do not investigate on our behalf; we investigate ourselves.
Q. Does the OTP pay the intermediaries for the work they do on your behalf?
A. We pay for expenses. If they travel for the OTP, if they lose a month’s work for the OTP, they absolutely deserve to be compensated for that. For them trying to assist international justice is an additional burden and it also puts them in danger.
Q. We have heard it said that the Prosecution has probably relied too much on intermediaries in gathering evidence, and in getting witnesses; that there should have been more supervision of their activities, or less roles played by the intermediaries than they actually did.
A. Those saying that don’t know what our investigators are doing. They hear about intermediaries from the [Lubanga] Defense and they buy whatever the Defense is saying. I am saying the opposite: intermediaries are just what they are – intermediaries. They are fantastic and committed people mentioning to the OTP that those children’s stories may be deserve attention. And that’s great. I do not think that we should try to affect the reputation of those intermediaries. For our investigators, I don’t usually comment on what they do.
Q. The other day, Judge Adrian Fulford raised the issue of whether the intermediaries needed to remain anonymous anymore, given the central role they seem to have played. Do you think the anonymity should be lifted?
A. The intermediaries are the ultimate line of defense for the [Lubanga] Defense [team] because they have no other argument so they are fishing for arguments. And so their ultimate argument is that ‘maybe the intermediaries are the problem’. They haven’t proven that. They have made allegations about committed people who really care about international justice and child soldiers.
As I said, the Defense have used that as their ultimate line of defense. They don’t like what the child soldiers are saying and so they are telling us that may be those child soldiers were influenced. And I am saying that we have very courageous, very brave child soldiers who have managed to make a life after what they suffered. Not all of them managed – we have a lot of them who are absolutely lost to society, abusing drugs… We have girls that haven’t been able to come and testify because they are prostitutes living on drugs and we couldn’t have them accepted as credible witnesses in this trial. And I think our witnesses were very credible witnesses because they showed exactly the effect of recruitment of child soldiers on those children. So the Defense is talking about intermediaries, I am talking about child soldiers and what they suffered.
Q. About two weeks ago, Judge Fulford asked whether the Prosecution planned to call some intermediaries to testify given that there is so much being said about the role they allegedly played in corrupting evidence. Is this something you are considering?
A. At this stage no, since we try and prove to the judges that intermediaries did not corrupt anything and that those are all inaccurate allegations.
Q. So, we come to the Defense. They have accused you – the Prosecution – a couple of times of not honoring your disclosure obligations. They say you give them too little information, too late, and that this is not fair.
A. That’s very interesting because, in fact, in this ICC there is a very specific role of the Prosecutor which is new to them and to the world of international justice. We investigate both incriminating and exonerating evidence. That’s absolutely new. This is what the Statute says – the prosecutor has to do the whole investigation with incriminating and exonerating circumstances. That’s what we did and the Defense evidence is largely based on the exonerating evidence that we found and that we gave to the Defense. And the Defense’s case is largely based on those elements that we disclosed to them.
Prosecutor Moreno-Ocampo is an experienced prosecutor. He has disclosed all his exonerating evidence to the Defense and in a very timely manner. Of course the Defense has not done the same but as I said, we are very good prosecutors, we are very good investigators. We will survive the fact that the Defense has not respected its disclosure obligations entirely. We recognize that it is a weakness but we’ll survive that, we still have a strong case.
Q. We now would like to ask something related to that. The Defense have said they will ask judges to look at the possibility of stopping the case on the basis of abuse of process. Do you see them succeeding?
A. No way.
Q. Is it because there was no abuse of process or because that wouldn’t be sufficient grounds to dismiss the case?
A. There was absolutely no abuse of process. Prosecutor Moreno-Ocampo is a very accurate and fair prosecutor. And as I said, whatever case the Defense has, it was built by Prosecutor Moreno-Ocampo based on exonerating evidence. So this is just talk. I understand the Defense entirely, it’s their last chance but nothing is going to happen. Mr. Lubanga is going away for a long time.
Q. How long do you reckon he will be going away for?
A. It is very interesting because we are going to ask for severe punishment; remember the maximum sentence provided by the Rome Statute is 30 years.
Q. That is a long time…
A. It’s a long time because the responsibility is immense. A lot of people have asked us ‘why recruitment of child soldiers?’ ‘Why this particular charge’? Because it’s huge! Recruitment of a child soldier means you force children of 11 and 12 to kill, to rape and that’s all they know how to do. So what does it mean? It means a whole lost generation. You [could] have a generation of Congolese whose way of life is to rape and kill and maim and torture. That is a huge crime. And this is what he is going down for – for having driven this whole generation to violence – not only now, not only in the past, but if we don’t rehabilitate them and reintegrate them, for the future.
Q. There was an attempt to have a re-qualification of charges against Mr. Lubanga to include sexual crimes and inhumane treatment charges. Going forward, does the Prosecution think that there is a way in which these crimes can be put into consideration?
A. But they are in there. Recruiting child soldiers is a crime whose content has to be redefined. If you recruit a girl as a soldier, you are going to use her to cook for you, to provide sexual services to you and to go fight during the day. So in the recruitment charges, you include the inhumane treatment, you include the slavery, you include the sexual charges. It is time that we all recognized that.
Q. Will the Prosecution be advising the judges on that?
Q. We are. And not only us, but Radhika Coomaraswamy, the special representative of the UN secretary general on child in armed conflict, has told the judges very clearly her definition and conception of what a child soldier is. A child soldier is not only a child you use to fight; it is also a child used to service the commanders and soldiers in a number of unspeakable ways.
It seems to be very difficult to envision what the fate of a girl soldier is when she is enlisted. I remember a story told that when a commander wanted to punish a young boy for not having performed his military duties, he had to cook for a whole week for the group. So a punishment for a boy is to cook. For a girl soldier, that is not a punishment; that is her usual life in the camp. She has to cook for all the soldiers in addition to all the fighting she does during the day and to the sexual services she provides during the night. So, do not tell me that sexual charges are not included.
Q. Lastly, the Defence witnesses are mostly appearing in closed session yet the Defence had promised to have most of their witnesses testify in public. The defense were also quite critical of the Prosecution witnesses who testified with protection measures, saying many of these witnesses were just intent on telling court lies. Any thoughts on that?
A. I have thoughts for all witnesses. Of course our witnesses, a lot of them, were Hema children. It is a pity but they are still considered by most components of Hema society in Ituri as traitors. I regret it, you regret it, we all regret it, but that’s the way it is. So they had to be protected, their identity had to be protected, we had to move them. They are fantastic children, most of them had passed their exams, but we had to move them from Ituri region to other regions to protect them. To continue this protection we had to hide their identity.
But Lubanga knows who they are, and frankly I am amazed at the courage of the children. They actually were in the courtroom with Lubanga and you know, Mr. Lubanga, he is making signs to the audience, he is smiling, he is doing a lot of body language – it is very terrifying for the children to testify in front of him. So they have been very courageous but we definitely cannot show their identities to the public.
It seems to me that the Court must, for the sake of the nation and especially because of his role in this heinous process, prosecute Mr. Lubanga to the full extent of the law. As a Congolese by birth who has lived in another land for years, I am shocked that the investigators would be questioned in this way just to find reason for a very culpable person to be declared innocent.
Hi Chris — you raise an interesting point and I do understand your concern. For a fair trial to take place, however, Mr. Lubagan’s defense team must explore every possible avenue of defense, including exploring whether there was any abuse of process along the way. Bringing the issue into court so it can be tested by the defense lawyers and by the prosecutors is important so the judges can best make up their minds as to whether there is any credibility to the allegations. Mr. Lubanga is also entitled to be considered innocent unless proven otherwise, so in the eyes of the judges at this point, they will be looking to ensure that a man that is still presumed innocent in the eyes of the law is not unfairly convicted if the process wasn’t above board. The prosecutors, as you saw in this article, are arguing that everything was indeed above board and that they will formally challenge the defense allegations about the intermediaries, but it will be ultimately up to the judges to decide how much weight they will attach to the evidence being brought before them on the role of intermediaries in this case.
Thomas Lubanga is the first prisoner in the world who is already sentenced by ICC members before the judges’ sentence. So did Chris Hodgood in his comment.
Every time Madam Beatrice Le Fraper speaks she always already sentences Mr Thomas Lubanga to a long punishment.
I think this is only the role of the judges.
Once I heard her interview on the UN Radio Okapi in Kinshasa, also I watched her intervention on TV5 and read her in newspapers and on internet.
How can you understand: UN said that 60.000 people have been killed in Ituri but the ICC prosecution has chosen just Thomas Lubanga (hema) for recruiting child soldiers and Germain Katanga & Mathieu Ngudjolo (Lendu) for the killing of 200 hemas in Bogoro.
What about 59.800 victim’s case? Where are other criminals? Congolese of Ituri need to know them. The Ituri war wasn’t hema and Lendu’s war.
Since 4 years Mr Thomas Lubanga was jailed in ICC, thousands of child soldiers have been demobilized from numbers of armed groups and the national army, even last week. Nobody has been arrested right now. No reaction can be observed from ICC and UN in DRC as Monuc contribute to the demobilisation. This is astonishing!
When you ask ICC members, they say Thomas Lubanga is jailed as an example. Justice can’t have an example! All criminals must be prosecuted! The contrary is injustice.
It could be understandable if Beatrice Le Fraper said that as the Prosecution witnesses are being defeated by the Defense, judges will examine the situation and decide. But she wore judges’ costum.
I think justice is the balance between fact and law. If there is no proved fact the law says to release the accused.
For example judges will decide on “a father (defense witness) who comes to ICC to deny his son (prosecutor’s witness) that he was not a child soldier” to know “who is telling the truth”.
In july 2008 Human Rights Watch (HRW) pointed out the “fabrication of child soldiers in exchange of money” and “the NGOs in Ituri were hurrying for the ICC money”.
ICC must show the new face of justice and the independence of the judges. If they can’t be independent it will just remind us, the Africans, all these tribunals organized by the dictators.
We hope that judges are slowly coming to understand Lubanga’s case, also what happened in Ituri, and they will take their decision independently.
Please remember that Lubanga is innocent until the judge’s decision.
Dear Dhetchuvi Matchu Jean-Baptiste — thank you for your comment. You raised an important point about the judges role, and about the fair trial rights of Mr. Lubanga to be presumed innocent unless proven otherwise.
I’m curious to ask your opinion — you rightly raise that thousands of people have been victims of crimes committed in Ituri, and that all people suspected of crimes must be prosecuted. The ICC can only do a handful of cases in any given situation — what is your sense of what is needed for more prosecutions to take place for crimes committed in Ituri — is it through the national justice system? Is it through the mechanism of a hybrid tribunal, like the ones set up in Sierra Leone or Bosnia, that should try the next layer of suspects below those targeted by the ICC? When needs to happen to ensure those prosecutions can take place?
Readers may be interested in the court’s judgment on this interview, reported on my website.
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