Interview with Mr. Eric MacDonald, Senior Trial Lawyer for the International Criminal Court (ICC). He spoke to www.katangatrial.org about the importance of the case against Germain Katanga and Mathieu Ngudjolo Chui and how it compares with the ICC’s first trial of Thomas Lubanga.
Jennifer Easterday: In your opinion, what are the defining features of this trial?
Eric MacDonald: The charges themselves. The fact that we have an attack on the civilian population from a crimes against humanity perspective and also war crimes, that are of a similar nature, and the fact that we have sexual violence charges, and the use of children during the Bogoro attack.
The fact also that we have two accused. We are the first trial proceeding before the court with two accused.
Also, another feature is that it’s one attack on a given day, so it’s very focused in time and geographically. The fact that we have two militia groups that joined forces to attack the village of Bogoro, I think it fits in really well with the mandate of the court in general when the statue was foreseen. I think we have a classic case, I would say. So those would be the main features.
JE: When you say it fits the mandate of the court and is the “classic” case, in your mind, this is the exact kind of case the ICC was created to deal with?
EM: Of course and others, but when one thinks of international justice, this case, I say, would be a classic international criminal law prosecution because it’s one attack on a given day by militia groups and the fact that civilian populations were killed during that attack…They were targeted as civilians.
JE: What can we expect to see in the coming months of the Katanga and Ngudjolo trial?
EM: The defense case will go on at least until fall. The defense has announced 36 witnesses, possibly 37 if Germain Katanga testifies…Right now, we are completing the third witness…Unfortunately, we could not close his testimony today; it will be finalized on Monday the 2nd of May, and then we continue.
Now, afterwards, the chamber has the power to, on its own, request testimony of witnesses or evidence. But also they can seek the parties’ views on the possibility of the chamber calling what I would call then rebuttal witnesses (as we know in the common law system) but in this case the request would be via the chamber and the chamber would then decide to call these witnesses or not.
So if we look in terms of a timeline, the defense witnesses indeed will be testifying until the fall of this year, so we cannot tell at this stage if we’ll end in September [or] October. And then thereafter, if there is evidence being called by the chamber, we don’t know yet. We’ll see that with time, and then afterwards you have the final briefs, oral arguments, and then eventually a decision from the chamber and the appeal process. So we’re looking at a possible appeal in 2012 or 2013.
JE: It is not correct that the Prosecution would have the opportunity, if it requests from the Chamber, to call additional witnesses?
EM: It is not automatic for the prosecution to call additional witness. I understand that this Chamber’s goal is to demonstrate that you are able to prosecute such cases in an expeditious manner so… to which extent they would permit the parties to call additional witnesses or evidence, at this stage we don’t know. But it is more likely that the chamber itself would then call evidence that they feel is necessary for the truth-seeking mission.
JE: Do you think the Defense would cut witnesses, or do you think it will go through all 37?
EM: Initially they had 37. They cut one already—the defense for Germain Katanga did cut one witness. It is a possibility that as we move forward the defense may decide not to indeed call some of their anticipated witnesses. But at this stage, we are only speculating.
JE: Why is this trial moving more quickly than the Lubanga trial even though there are two accused and more charges?
EM: One thing to remember is that this is a young institution. Lubanga, being the first case, they have established standards which this chamber, the Katanga and Ngudjolo chamber, has learned from and has maybe moved away from. And of course, because Lubanga, being the first case, some issues were raised that had to be litigated and decided by the Appeals Chamber and so knowing, or with the knowledge of these decisions, we were able to adapt our prosecution in line with these decisions. And also, the chamber then being privy to the issues having been previously decided by the Appeals Chamber, the Chamber itself also has precedents to…order or provide instructions to the parties or participants in our proceeding. Of course, the first case is always the most challenging case, and the ones that come afterwards benefit from the advantages and maybe the difficulties of the first trial. So it’s a lessons-learned exercise also for everyone and for all cases coming after Lubanga.
JE:You mentioned that the trial chamber has moved away from some of the precedence in the Lubanga trial, and without getting into a lot of detail, are there are any issues that you could flag?
EM: The thing is that one of the main issues obviously at the beginning of…Lubanga was material under 54(3) and confidentiality agreements with the UN for their documents, for instance. We were able to adapt our analysis and use and seek in a timely fashion lifting of redactions or lifting of the confidentially restrictions early enough so that we would not be faced with the same challenges on that very issue in our case. So that’s one example. But it’s a very big issue because it relates to the disclosure of material to the defense, and the Lubanga trial was delayed because of that…for, I don’t know how many months. We didn’t have to go down that path…
Also, I understand that in the Lubanga case, there was a stay of proceedings or debate as to the disclosure of identity of intermediaries, which was not an issue in our case, so we were fortunate to not have to go through all of these debates as in Lubanga.
JE: In general, do you find that this Trial Chamber is pretty consistent with the other trial chamber?
EM: Yes, it is pretty consistent, there may be differences, but in general terms it is the same procedure. We’re calling witnesses; the rule is that it’s the testimony of witnesses that count, it’s not the production of their statement in the court records, and so on. So in general terms the proceedings are applied in a similar manner. Now, there may be little differences here and there that you don’t necessarily see on the record, but legally the decisions are pretty consistent.