After a summer that has left the future shape of the trial in doubt, Catherine Mabille spoke with the Lubanga Trial website about the possibility of new charges against her client, victims’ participation, and what will happen next.

Rachel Irwin: Let’s begin by talking about the developments this summer. The victims’ representatives asked the judges to “reclassify” the existing charges as sexual slavery and cruel and inhumane treatment, and on July 14, a majority of judges ruled that this is a possibility.  Can you give us a sense of your position on this?

Catherine Mabille:  I think [the July 14 ruling] is a really bad decision — and not only for the Lubanga trial. The foundation of the Rome Statute [which governs the court] has been destroyed by this decision. What is the [point] of [having] the preliminary chamber [decide on the charges] if you can change the charges after the end of the prosecutor’s case?

If you can change everything, it means you don’t need to do a [confirmation of charges] hearing. The second point, which to me seems very important, is that under the Rome Statute, you have some judges who are going [to determine] the charges, but they aren’t going to be the same as the ones who are going to deal with the case [during the trial]. This separation is really, really important. Then, you have to discuss the rights of the accused, if you can change the charges after the [conclusion] of the prosecutor’s case.

RI: Both you and the prosecutor have appealed the July 14 decision. So what is going to happen now? Will the trial proceed?

CM:  We don’t really understand how we can proceed without having the appeals decision, because how can you work on charges that aren’t [defined]?

RI: Can you explain what would happen if new charges are added now?

CM: We would have to come back to the beginning of the trial, and [think about] the right of the accused to be tried in a reasonable amount of time. We would also have to call back all the prosecution witnesses, because we didn’t do any cross examination of crimes that didn’t exist at that time. The defense will have to ask for lots of time to re-prepare its case.

RI: When I talked to the victims’ lawyers, one thing they said is that they announced they were going to do this in their opening statement on the very first day of the trial—so your team had a bit of warning.

CM: Did [they] think we could anticipate virtual charges that were not in the [indictment]? I think the victims have no right to ask for a new qualification of the charges. I told judges at the beginning [of the trial] that we have to be very careful with victims [participating] now … [and] in this kind of trial it is very difficult if the defense has to face first the prosecutor and then the victims. And I think I was right on that.

RI: In your opinion, what role should the victims play during the trial, if any?

CM:  We think their main role is not at the trial – it should be during the reparations phase. At the moment, their role is too close to the role of the prosecutor. We have to face the prosecutor, and then the victims. For us, it’s exactly the same.

 I used to work at the ICTR [International Criminal Tribunal for Rwanda] with no victims, so I thought [having them participate at the ICC] was interesting. But after two years, I’ve changed my mind. I think my position is, during the trial….it’s the prosecutor who has the burden of proof and we have to challenge that. It seems to me [that victims participation] is a good thing but just put it in the reparations phase. When the guilt has been proven, that’s where they could have important role.

RI:  OK, but many advocates say that victims’ participation exists so that the victims can take action when they don’t feel the charges are reflective of what happened to them.

CM:  If the prosecutor decided he didn’t have enough evidence to prove a case against Mr. Lubanga, his words should count for something. If he doesn’t feel he has the evidence for that, then why would the victims ask to add new charges? The prosecutor has the burden to prove the guilt of the accused, not the victims. He’s in a better place to judge if he has the evidence or not.

RI: The prosecutor didn’t bring sexual violence charges, but he spent a good portion of his opening statement talking about the issue. Did you find that striking at the time?

CM:  As the defense, we were sure he could say what he wants, [because] the charges were there.  The prosecutor was trying to [appease] the victims — that’s the way I’ve heard it.

RI: You said in your opening statement that the case was “badly approached” by the prosecutor. Do you feel that the trial was conducted in a fair way?

CM: [We are concerned] about the number of closed sessions—everything was so secret and redacted. All the most important stuff was in closed session. I was in Bunia for three weeks and everyone was asking me, ‘What is going on? Why didn’t we see your cross examination?’ People can’t have a real view as to what’s going on in this trial.

RI: But if you have a witness who’s been a victim of a crime and feels scared, it makes sense that their identifying information would not be revealed.

CM:  In Bunia, people are saying, ‘Why don’t you want me to see exactly who is saying that?  My idea is that we have to be very careful, [because] you can protect weak people, but not people who want to lie. How can the victims hear the trial and say, ‘This is what I’ve gone through’, if they can’t hear the testimony of other people who’ve suffered?

RI: So when the court goes into private session, is it because you’re talking about information that would give away their identity?

CM: Yes, because we are asking, “Who is your father, who is your mother? What school did you go to”? Everything.

RI: But if they have protective measures, it makes sense that that information would be in private session.

 CM: Protective measures outside the court are one thing, but protective measures inside the court are another. We feel that people who benefit from very high protective measures outside the court should have lower protective measures inside the court.

RI: But however much someone is protected outside of the court, if their name is revealed during the trial, it could jeopardize that protection.

CM: Everything is very theoretical. If someone is protected and relocated, his security is not so much at risk as someone who is in the Congo in the same city he’s been living for the last 10 years. For that person, we don’t have to disclose where he lives now.

RI: During your opening statement, you talked a lot about how Lubanga is being tried in place of others who bear greater responsibility.  Is that still your position?

CM: The Rome Statute says you have to try the most responsible person. The question raised by us is: is Lubanga is the [most appropriate] guy for this trial at the ICC? What was the role of [Congolese president Joseph] Kabila, or [Ugandan president Yoweri] Museveni, or [Rwandan president Paul] Kagame? And who does the court want to try? Are you taking the person who is easiest to take? That’s a real question.

 Everybody knows that Kabila has an army right now [which has allegedly used child soldiers]—everybody knows it and Lubanga is here for that and Kabila is going on doing that, and Kabila is the one who gave Lubanga to the court.

RI:  Can you give us a preview of your case?

CM: No. As a lawyer, you are supposed to tell everything to the judges first. I know some lawyers are using the press to make some statements, but that’s not what we do. You are going to understand everything when we begin.

RI: What has been the most challenging or interesting part of this process for you?

CM: When I was in Bunia I felt lots of frustration. People heard the prosecutor—they never heard the defense [because of all the closed sessions]. In Congo, people don’t understand the way it’s working here—they don’t understand that the prosecutor goes first and then the defense will present its witnesses. We can’t do more than what we are doing, so people have to help us [to explain] the role of the defense, because people there don’t understand.

[To read about the views of Ms. Fatou Bensouda, the ICC’s deputy prosecutor, please go to: http://www.lubangatrial.org/2009/07/31/interview-with-fatou-bensouda-icc-deputy-prosecutor/]