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Q&A with David Hooper, Defense Counsel of Germain Katanga: Part II

Interview with Mr. David Hooper, defense counsel for Germain Katanga. He discussed his views on the Prosecution´s case. He said that the Prosecution did not comply with their obligations to provide exculpatory evidence. He also pointed out that the voice of Ngiti-Lendu communities has not been represented in the trial.

JA: Your team was recently in the DRC. Were you conducting research there?

DH: We had to do our investigations. We’ve only got one person investigating for us; we don’t get the money to have more than one investigator. And in fact our investigator is not even a qualified investigator. He is just what is called a person of resource. But we have to go out and see people and make our own assessment. He is not qualified to assess people as witnesses.

JA: According to you, was the exculpatory evidence provided by the Prosecution satisfactory?

DH: No. We barely received any exculpatory evidence. Suggesting that the Prosecution would do that is nonsense.

The Office of the Prosecutor didn’t even go to Aveba [a village in the Ituri district]. They didn’t even visit Walendu Bindi, where the Ngiti live. As far as I know, not one prosecution staff member set foot there. So, how on earth are you going to discharge your duty to look for exculpatory evidence if you don’t even go into the area where the accused and his supporters live?

It is one of the ridiculous aspects of the Rome Statute to even expect a prosecutor to do this. They wouldn’t do it. They haven’t done it. I don’t think there’ll ever be a case where they’ll do it. The only people who are going to investigate the defense case for the defendant are the defense.

JA: What are your observations on the prosecution case?

DH: I believe the prosecution made their greatest mistake by believing their witnesses. So for example, if you had a witness saying, “I was a child soldier and I was 12 years old,” that was accepted. No one seems to have gone to his or her parents and said: “How old is your child? And was your child a child soldier?” And in both the Lubanga case and our case, some of the witnesses told lies and they were lies easy to discover. What I mean is that the prosecutor hasn’t even investigated his own evidence.

JA: So, some of the witnesses that will testify will challenge the evidence of the prosecution witnesses…

DH: Well, we are going to call the parents of some of these witnesses. And we will be calling the husbands of some of these witnesses.

JA: Why was this trial quicker than Lubanga?

The Lubanga case was beset by problems caused by the Prosecution that led to the Judges having to stay proceedings. So, with the proceedings stayed the trial was stuck.

JA: During the trial, how have victims been involved and what has the defense position been with respect to civil parties?

DH: The victims, subject to fulfilling certain criteria to do with their connection with the facts of the case, can participate fully. They have two counsels to represent them in court and have asked questions of witnesses and responded to other parties’ filings. I have to say that I am unconvinced as to the necessity of victims participating in the way they do but there we are – we have abided by the chamber decisions in respect of the victim’s ability to participate.

JA: And how do you think the voices of the Lendu and the Hema ethnic community have been represented in the trial so far?

DH: It is completely unbalanced. It is very interesting because the prosecution did this selection.

We’ve got the Lubanga case, which is a very narrow issue, child soldiers. And I don’t know what has been said there about Lendu and Hema communities. But in our case, the people who have been put in the dock, the accused, are the Lendu-Ngiti.

Inevitably, you are going to hear a lot about this particular attack and about the sad and tragic things that happened to the Hema people on this one day. But what you don’t hear are the Lendu-Ngiti who had been killed by the Hema in the months preceding this attack. Nor did you hear about the terrible depravations against the Ngiti, who were attacked by the Ugandans, who were attacked by the Hema, and who were then later attacked by their own army, the DRC army.

The result is, I know, that people in Walendu Bindi, the Ngiti, still know that only one victims’ voice that has been raised in this court. And that is the Hema. They don’t understand it because they were attacked by the Hema.

JA: So what other issues did the Ngiti-Lendu raise with you?

DH: They said to me, so to give an example: “Why is it that all the people that had go to give evidence have come back and they all wear better clothes.” But it is more than that, they say: “Why is it that that the Ngiti and the Lendu we don’t seem to have a voice in there? Nobody has asked to tell the court all that happened to us.” And there is no Ngiti or Lendu victims, as far as I know, out of the 300 victims. And that’s because of the choice the Prosecution made in terms of the charge. And they [Ngiti-Lendu] are fed up with it.

The parents of child soldiers think the ICC has kidnapped them. Because they have been taken away from the area and they haven’t been seen since. Under the witness protection they have all enjoyed education, clothing, housing, maybe some of them have been resettled in Europe.

This is an incentive to give evidence and also an incentive to give false evidence. I think there has been the situation in our case that the Prosecutor has been in a way manipulated by their witnesses to provide this kind of resettlement. I guess that what the prosecution say is that it is nothing to do with them, it’s all to do with the Victims and Witness Unit (VWU) think of it. But I’ve seen some evidence that suggest the prosecutor has put pressure on the VWU to provide that for a witness.

Judit Algueró currently works at the Special Tribunal for Lebanon. She previosly covered the Katanga-Ngudjolo trial and Lubanga trial for Aegis Trust.