Luc Walleyn’s team has represented 22 of the 103 victims participating in the Thomas Lubanga trial since 2006. He spoke to the Lubanga Trial website’s Wairagala Wakabi about the importance of victims participating in ICC trials, the opportunity missed by not charging Lubanga with sexual crimes, and why the victims’ lawyers are not happy with the attitude of Lubanga’s defense team.
Wairagala Wakabi: The appeals court has decided that no new charges could be brought against Mr Lubanga. Do you see a missed opportunity in Lubanga not having been charged with sexual and inhumane treatment crimes?
Luc Walleyn: After the appeal decision there was a new discussion on the consequences of this appeal decision and on Friday (January 8, 2010), a final decision was pronounced by the trial chamber saying that there were no sufficient elements in the decision on the confirmation of charges making it possible to change qualifications.
So indeed it is a missed opportunity. It is basically a failure of the Office of The Prosecutor (OTP). The OTP now also agrees with the importance of sexual crimes committed against female child soldiers and the inhumane treatment of children in training camps. But in the preliminary procedure OTP was only prosecuting the very fact of enlisting and conscription of children without entering into those circumstances.
WW: Would you say then that the efforts of the victims’ representatives in this regard produced some positive results?
LW: I am convinced that our initiative was not useless; we now have opened the debate on those circumstances. For our clients there is a big difference between just being enlisted in a military structure and their situation as many of them were abducted, and submitted to inhuman treatment, even if [some of them might have] presented themselves for enlistment because of fear of being killed, poverty hunger, and other circumstances.
That’s why it was important to focus on the living conditions of those children in the camps, and particularly those of the girls. The practical consequence of our move is that these elements of the crimes will stay on the agenda and under court’s attention, but legally if Lubanga is convicted it will only be for enlisting and conscription.
WW: Now that the charges were not added, do you feel the issue of sexual crimes and inhumane treatment can still get adequate attention under the current charges?
LW: I think so. The court never said those elements were not present. The appeal chamber doesn’t say aggravating and mitigating circumstances of the crime cannot be taken into account by the trial chamber if they were not addressed by the decision on the confirmation of charges. The court can still consider those elements once it comes to punishment and when it comes to reparations. Only the qualification can not change. It is in fact quite a theoretical distinction because the punishment of conscripting and enlisting children is exactly the same as the one for all other crimes, under the Rome Statute.
WW: So will the victims’ representatives be taking any more steps on this issue or it is closed now?
LW: It is now a closed issue when it comes to qualification. It does not mean at all that we will no longer speak about sexual slavery and inhumane treatment of children during training. Even in the first part of the trial all the questioning by victims’ representatives, the prosecutor, the court and sometimes even the defense, included those elements.
WW: I would now like to draw your attention to criticisms from the defense: they feel victims should mainly play a role in the reparations phase and that so far the victims have wrongly sought to play the role of prosecutor. What’s your comment on that?
LW: The role of the victims before the ICC differs from the one before the ad hoc tribunals where there is no other role for them other than a role of witnesses, but also from the role in some legal systems from the civil law tradition, where civil parties have exactly the same rights as the prosecutor….The chamber was very careful when elaborating on the issue of victims’ participation to stay in the spirit of the Rome Statute. Modalities of victims’ participation were also confirmed and drafted by a decision of the appeal chamber. So we now have a legal framework that becomes more and more clear.
Of course it would be more comfortable for the defense not to have victims participating in the debate on the guilt or innocence of the accused. But it would be much more uncomfortable for them if they were in a civil law system where victims can have much more rights than we have in the present procedure.
WW: So then, are the victims also planning to question defense witnesses?
LW: We will have some questions for the defense witnesses. We can’t question in the same conditions as the prosecutors, and this is very comfortable for the defense. We have to ask for permission to question a witness. We used the possibility during the Prosecutor’s case in the framework the trial chamber decided and it will be the same for the defense case.
WW: And what makes you decide whether or not you would like to question a particular witness?
LW: We have to prove that we have an interest in questioning that witness. For example, if one witness says Mr Lubanga is a very nice man of a high moral standard, that is not our problem, so we will not question such a witness. But if he says that in a particular camp where my client was trained, that training was done in a very civilized way without beatings, without inhumane punishment, then I will want to question him. Because such a statement has an impact on the position of my client and even on the claim of reparation he could make in future.
WW: in your view, why is it important to have victims participating in a trial such as Lubanga’s?
LW: For the court, it is quite important to also have the voice of the victims in order to have a view of the reality of the situation. Without victims’ participation the trial is a confrontation between on the one hand the international community and the other someone who claims being the representative of his people. When victims can say ‘no Mr Lubanga you were not representing us and your decision to force Hema children to join an armed group was not in the interest of the community and was not in the children’s interest’, then you have a different picture. There is no conflict between African people on one side and international community on the other side, but between one person accused of serious crimes and ordinary African people and victims of those crimes, with the international community in the role of protecting and supporting these victims. This is also the aim of the Rome Statute.
That’s theory of course. But also in practice you can see clearly that the questioning of the Prosecutor is not the same as the one of the representatives of victims. The Prosecutor will be very interested in the chain of command and the individual responsibility of the accused, but much lesser in what the reality on the field was for children in armed groups. Finally it is important for the communities who are following the trial to hear the voices of those victims and to understand that these young people who were in that group are not to be considered as criminals but as victims.
WW: Do you feel you are getting sufficient cooperation from the Office of The Prosecutor (OTP) and the defense team?
LW: At the beginning both the OTP and defense were very reluctant when it came to victims’ participation and we had a lot of debates. Now OTP admits the role of victims was not to disrupt the trial or to abuse procedures, that the victims had a realistic and useful approach to the trial. So we now have a more positive attitude from the side of the Prosecutor than we had at the beginning of the trial.
But there is no cooperation at all from the defense. The defense only gives victims what the court orders them to. They feel there should be no victims’ participation at all unless after a decision on the guilt of the accused when victims take part in discussions on reparations. That is their starting point and the result is that there is no cooperation from their side in disclosing information. Even today we do not know the names of the witnesses the defense will call, or even the issues they will be questioned on, yet for each witness we are supposed to decide a week in advance whether to ask for permission to question that witness or not. During the first part of the trial everything we got from the defense, we had to work for a decision from the court.
WW: The attitude of the defense team is probably understandable…
LW: It is a choice of the defense; I respect that. But a more open cooperation between parties than we have today is not necessary against their interest. Also victims’ counsel are bound by ethics and a duty of confidentiality. But anyway it is a choice and I can only accept it.
WW: The defense team has also spoken out against the frequency of closed sessions during the prosecution case, saying they could have covered up some witnesses who want to tell the court lies. Are the measures for witnesses excessive, or are they just sufficient to protect witnesses?
LW: The very fact that the case is broadcasted in the DRC and watched widely makes protective measures more necessary than in a normal situation. A protected witness can be living in another city in DRC with a new identity; if his face is seen on the internet then this identity is no longer protected.
Also the Defense admits the necessity of closed sessions. I don’t remember even one time the chamber decided to go into private session and the defense protested against that. And when it comes to the defense case I am convinced not all their witnesses will testify in open session.
WW: With regards to the issue of reparations, could you please give us an idea how this will play out?
LW: The issue of reparations is a completely new issue. Also the victims themselves have to debate on the ways that reparations will work. The Rome Statute makes it possible to have individual reparations but also collective reparations; financial compensation but also other forms of reparation. And the Victims Trust Fund will play an important role in that.
Unfortunately, reparations for ex-child soldiers will always come too late. When 20 years old, one cannot return to the primary school. Also collective reparations are less easy than when a village or community was victimized as a whole. Those children belong to the community of the accused. So I think most of them will prefer financial compensation to be in the possibility to survive and to start some business, although also medical and psychological relief is important.