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Q&A with Eric MacDonald, Senior Trial Lawyer for the ICC: Part II

In Part II of the interview with Mr. Eric MacDonald, Senior Trial Lawyer for the International Criminal Court (ICC), he spoke about the role victims have played in the trial process and the ultimate effect the trial has had in Ituri, Democratic Republic of Congo (DRC).

JE: What has been the Prosecution’s position with respect to the victims’ participation? Have there been any differences in the approach of this trial chamber with victims’ participation as opposed to other trial chambers?

EM: Of course, the position of the OTP is pretty clear. The OTP obviously recognizes that the victims bring a unique perspective to the activities of the ICC, and also their views and concerns are being addressed. They have an opportunity to contribute to fair and efficient trials. So of course, the office is mindful that once a victim meets all of the statutory requirements, then there shouldn’t be any bureaucratic or resource related arguments to block them from participating or to prevent them from participating. And we’re mindful of making sure that between all of the trials, the same rules and practice are being applied certainly in terms of their having an opportunity to participate actively by asking questions and or calling victims to testify and/or questioning defense witnesses.

If I look at the Lubanga case and our case, the approach is pretty consistent. There might be a difference between our case and the Lubanga case in terms of the material that we have to disclose to the victims. The main difference that you have is that in our case, instead of having (I don’t know how many LR’s [legal representatives] that they have, in the Lubanga case, let’s say four or five) in our case we only have two. So…you have two LRs, one representing the core victims of the Bogoro attack, and another one the child soldiers, be it from the FNI or FRPI that attacked Bogoro, recognized as being victims. So we have two, only two, legal representatives that represent the 350 victims that are allowed or are currently allowed to participate (give or take a few victims, I don’t know the exact number because it is fluctuating a bit as we are progressing). So that would be, I guess, a lessons learned from our Chamber—instead of having four, five, six legal representatives representing different victims, they kind of regrouped them into crime based victims on the one hand, Bogoro crime-based victims, and a group of child soldiers being represented by another legal representative.

As stated above, the disclosure regime is maybe more favorable in the Lubanga case in comparison to our case. These would be the two main differences.

JE: Do you think that having limited legal representatives to just two it is making it more difficult for the victims’ representatives?

EM: No, I don’t think so. Of course, if you’re not the initial lawyer then all of the sudden you are given additional victims to represent, then it means that most likely, you have to go back and meet with them, and establish your mandate, there has to be a transfer of mandate in the field. So yes, this may create some practical difficulties, but in terms of expeditiousness in the court and filings, it may simplify the matter for the chamber.

JE: Is the victims’ evidence treated any differently by the judges when they make a final determination? I know that some of it can go to reparations and some can go to mitigating or aggravating circumstances.

EM: But they are also permitted during the trial proper to also present evidence that goes to the guilt or innocence of the accused.

JE: So the victims who testified earlier this year, their evidence can be used by the judges as any other witnesses who are called?

EM: It is part of the court record. Their testimony is in the record of the case, and the Chamber should be indeed permitted to rely on it.

JE: Have there been any challenges in general with witness security, or slip-ups with identifying information being called in open court? Has that been a problem or has it occurred at all?

EM: Of course, there have been orders to redact the transcript or the audio/video recording of the proceedings, because yes, sometimes there are slip-ups, it happens. Inadvertently you’re questioning a witness and you’re naming him by his first name, it happens. On the prosecution side, it didn’t happen that often, and you don’t necessarily control the answer of a witness. But during cross-examination of prosecution witnesses, quite often we did have to seek redaction orders, which were issued.

That is another feature of our trial which is managed much more differently than in the Lubanga case. We’ve had much less closed session hearings (be it partial or complete closes session hearings). Our trial, I would say, I don’t know the latest figures, but I believe at least 90 percent of the time it is conducted in public sessions and so we don’t have these long spells under closed session. But that doesn’t mean that there are any security problems, no…One of the greatest challenges of the prosecution is the security of its witnesses, and we have encountered difficulties that I cannot go into, because they are mainly confidential issues. But if you look at the decisions of the chamber that are publicly available, although maybe in redacted form, there have been a number of measures put in place to protect witnesses, starting from basic redactions to some information in their statements and/or all the way to witnesses being relocated and protected by the victims and witnesses unit. So witnesses that are in the International Criminal Court Protection Program, what we call the ICCPP. So yes, we’ve had those challenges.

JE: What are the particular risks faced by witnesses and victims in this trial? Are they distinct for insider witnesses, crime base witnesses, victim participants, and defense witnesses? Are they distinct from risks faced by witnesses in other DRC cases? The Lubanga trial? If so, how?

EM: Both crime base and insider witnesses have been relocated. But of course, one thing is for sure, it is undeniable that insider witnesses, because of the nature of the evidence, be it linkage evidence, meaning linking both accused or groups to the crimes themselves, are much more at risk than a crime base witness. Now, it doesn’t mean that crime base witnesses are not at risk either, they are, and in our case we have had some crime base witnesses that are relocated, but I would say that inevitably because of the nature of their evidence, insider witnesses are more at risk.

It’s like prosecuting a mafia case. If you’re prosecuting a mafia case in New York City, if you want to be successful, most likely you will have an insider witness. This insider witness is at risk, inevitably, and will have to enter some sort of witness protection service. Here it is the same thing. There are different challenges, because we’re working in the DRC, it’s far away from The Hague, the profile of our witnesses is completely different, language-wise, culturally, intellectually, which means that it is a resource intensive exercise be it for the OTP or the registry Victims and Witnesses Unit.

JE: Are there protocols that the prosecution goes through before the witness is turned over to the VWU?

EM: Yes, there are, we have our internal [process] but there are also protocols between the OTP and the VWU for that purpose. And of course, it’s not anyone that we submit for relocation, and before a witness enters the witness protection program or is relocated, there are alternative measures that can be put in place, which mean not entering the ICCPP itself but having some kind of support for their protection. It’s difficult for me… I can’t be more detailed because the details are not necessarily public and I don’t want to give them away or mention what these measures may be, but there are alternatives to the full relocation of a witness.

JE: Do you have any observations you can share about the Defense case and strategy so far?

EM: No. Look, I think that Mr. Hooper was interviewed, he gave his answers, he gave his point of view on that. You also have the opening statements. There are also different filings, I don’t know necessarily if they are public or not, where he kind of hints at his lines of defense. So, no.

I’m not here to comment either on the credibility of witnesses, like he seemed to be doing about prosecution witnesses, and certainly I will not be commenting on defense witnesses either. I will be doing that in court, [and] in our closing brief, once the evidence is on the record. Until then, one can have his own opinion. But obviously, I don’t agree with Mr. Hooper and his assessment in terms of the credibility of prosecution witnesses. For me, as a member of this court, as an officer of this court and the way that I work for the OTP, we’re not here to comment publicly on the credibility of witnesses.

JE: Did the joinder of the cases raise any significant challenges for the OTP?

EM: No, because the evidence as a whole is being disclosed simultaneously to both accused. Of course, some evidence is more relevant to one accused or the other. The only impact it has is duplication of maybe the work, sometimes. And, we have to respond to two defense teams making submissions and fillings, be it in writing or orally. Of course, the chamber itself had to adapt and foresee rules since we have two defense teams examining or cross-examining witnesses of the prosecution and then calling their own. So there are adjustments and because of that, inevitably, it creates, or theoretically, it takes more time to present a witness in court, but other than that, there are no major challenges.

JE: How do you think the voices of the Lendu and the Hema ethnic communities have been represented in the trial so far? Has the OTP taken that into account in its prosecutorial strategy?

EM: These are criminal trials, so we are prosecuting individuals for their responsibility in incidents or for crimes that fall under the Statute. The first case involves Mr. Lubanga who is a Hema north, and the second case happens to be against Mr. Ngudjolo (Lendu) and Katanga (Ngiti). Personally, I’m not concerned with their ethnicity…we investigated the Bogoro attack and it led us to these two accused, so there are a number of incidents we have looked at, but in terms of Prosecutorial strategy to prosecute now Lendus or Ngitis, that was not one of our concerns in this case.

JE: But do you think that this case can contribute to justice in the DRC, in total, in the region, or in your mind is it more specifically related to this crime and this incident?

EM: In general terms, independently of who is being prosecuted, Mr. Lubanga, Ngudjolo, or Katanga, one thing is for sure, the fact that we focused on Ituri, has meant that currently Ituri is in a much better situation than it was in 2004 when we started our investigations into Ituri. And currently, although the situation is still volatile and there are still problems, the work of the court is being publicized. People in Ituri know about us, know about the court, what it’s doing, and I think we brought forth the fact that obviously not only are child soldiers issues important and cannot be tolerated but it also demonstrated the capacity and a willingness to prosecute the most responsible individuals for the crimes they have committed. And people [realize] that the world is doing something for what happened. I think the Iturians realize that be it if they are Hemas or Lendus.