A little bit of context: In the past weeks, the defence in the trial of Thomas Lubanga Dyilo has accused an intermediary working for the prosecutor’s office of bribing witnesses for fake testimonies. As a result, the court has ordered the prosecutor to reveal the identity of the intermediary. But the prosecutor refused to reveal the identity leading the judge to order the stay of the trial and the release of Mr Lubanga last Thursday. This is the second time the court orders his release since the beginning of the trial.

Face à la Justice: Why did you refuse to give the name of the intermediary in the Lubanga trial and are you planning to do so?

Luis-Moreno Ocampo: Because the person should be protected before providing the name. We accepted to disclose the name but we requested that first, the appropriate protective measures should be implemented. It was a matter of days, which is why we were debating this issue in court.

FAJ: So are you planning on disclosing the name soon?

LMO: As soon as he is protected and in fact today, the trial Chamber II, in the Katanga case ordered to protect the intermediary. So as soon as the protection is in place, we will disclose the name in both cases. In the Lubanga case, few minutes ago we appealed the release of Thomas Lubanga and we request the Appeal Chamber to suspend the effect. That has happen previously so, I am confident that the Appeal chamber will follow its previous decision and Thomas Lubanga will not be released pending the Appeal Chamber decision. And if the measures ordered by trial Chamber II are implemented, we can disclose the name and then request a lift of stay. We are transparent to say that this information should be disclosed to the defence but also we say we cannot do it because of the issue of confidentiality. And the judge is saying that under these conditions we have to stop the trial. I think what happened is good, we are showing this is a court of justice. The prosecutor is firm in his duties and the judges firm in their own duties. [...]

FAJ: The witness protection unit seems to imply the intermediary is already protected.

LMO: The situation is the following. The Chamber itself ordered to disclose the name after protective measures were implemented and they said it twice. However there was a debate between the person to be protected and the witness unit that was apparently delaying the disclosure for two weeks. So what the Chamber did is to say ok, we’ll do a limited disclosure. Just to the defence, Lubanga and the resource person. And the Chamber believes this was not exposing the intermediary to risks. We have a different assessment, we believe this is also exposing him to risk and that is why we are challenging the decision. This is a debate. Disclosing the name to Lubanga and his resource person is putting him at risk or not? We believe yes and we are debating that. And we also say, the prosecutor prefers to lose the case than expose the life of people who are working with the prosecutor’s office.

FAJ: If indeed you lose the case or if Thomas Lubanga is freed following the Appeal Chamber’s decision, it will have grave consequence for justice and the fight against impunity in DRC…

LMO: I don’t think we’ll lose the Lubanga case just as a matter of principle. As a matter of principle, first protection of people, then professional activities.

FAJ: You present this as a debate between the judges and yourself, but obviously something went wrong since judge Fulford ordered Lubanga to be released. Why did the “debate” come to this point? It sends a very negative image to victims in DRC.

LMO: We have a different perception. The judge made a decision, we disagree and now we appeal.

FAJ: And you are confident that the appeal will reverse the decision?

LMO: We trust that the Appeal Chamber will make a final decision and we will respect the decision. We have our position and we will present our position to the Appeal Chamber. Yes I believe the problem will be solved but it is in the hand of the Appeal Chamber now.

FAJ: You are investigating crimes committed in the Kivus. Where is the investigation standing and will there be an arrest warrant for Laurent Nkunda?

LMO: We are progressing in the Kivus, we hope before the end of the year we will have some results. Nkunda in particular is a case where there are national proceedings in Rwanda and in DRC, so we in principles respect the national proceedings. In principles Nkunda would be first prosecuted in Rwanda and I understand DRC has requested an extradition from Rwanda so we have to see what happens first at the national level. The ICC won’t step in for now.

FAJ: The Bemba trial has been delayed as well. In North and South Kivu, people have the impression that trials are taking too long and that it is impeding the right of the detainees and the right of the victims. What do you have to say to that?

LMO: I regret the delay and I understand victims want justice. But at the same time the court shall respect victims but also the accused. The court considers that, because the accused made this challenge at the admissibility of the case, we have to solve the challenge first. So it is the judge’s decision and we respect it. But I think there will be justice and the case will end well.

FAJ: Could you explain why you did not charge Bemba for crimes committed in DRC?

LMO: The Central African Republic referred the case and we found that these were the greatest crimes committed in the CAR, which is why we charged him there. Also we cannot investigate before 2002 and some allegations against Bemba in DRC are from before 2002 so I’ve got no jurisdiction.

FAJ: People in DRC are also wondering why you did not put charges for crimes of sexual violence against Lubanga.

LMO: We learned that Lubanga could be released in March 2006, so in October 2005 I said, ok where are we? Do we have enough evidences to present the killings? No. Enough for rape? No. Child soldiers? Yes. So we moved with child soldiers because that was the case we had enough evidence for and I was trying to be sure we get Thomas Lubanga before the court. It is not the only crime he committed but I think it is very relevant the first case was about child soldiers. I think child soldiers is a serious crime destroying generation of people. And also the hearings show how child soldiers is not just when you are abducted and transformed into soldier, it is the painful training. You lose a bullet, they beat you. Girls are educated to be soldiers, cooks and sex slaves at the same time. So we exposed the suffering of these kids. In fact, I like that the first case is about child soldiers.

FAJ: But it could have been child soldiers and sexual violence.

LMO: But the point is we are showing the sexual aspect of the child soldier case and I think it is important because if not, the girls who are child soldiers are ignored. They became the wife of some soldiers and commanders; they are ignored in the demobilisation programs. [...]  I believe it is important to highlight that, yes there are gender parts, but it is associated with the child soldiers’ case.

FAJ: A question that our listeners in North and South Kivu regularly ask: you have been focusing on African situations and some people feel this is a court for Africa and not for the world. What do you have to say to that?

LMO: We are conducting preliminary examinations of all the crimes that could fall under my jurisdiction. There is one in South America, it is Columbia. There is one in Europe, it is Georgia. There is one in Asia, it is Afghanistan. And then you have Congo, Uganda, Central African Republic, Darfur, Kenya, Cote d’Ivoire, and Guinea. What happen is, there are many crimes in Africa that African leaders are trying to stop and that is why we are in Africa. They are trying to stop the crimes and we are helping them to do it. We are in Africa because we shall be in Africa, the shame would be not to be in Africa. Because people have the feeling that in colonial times, colonial powers interfered with African life. But what happened in the 1990s, in Rwanda in particular, colonial powers ignored African victims, and that’s for me the shame. This court, the office of the prosecutor, will not do the same mistake. There are victims in Africa of crimes against humanity, genocide or war crimes, we will do justice for them and we are proud of that.

FAJ: The ICC mandate is to try the most responsible. Many Congolese feel that the most responsible are maybe not Lubanga, Katanga or Ngudjolo, but the Rwandan state, the Ugandan state, which manipulated these war lords…

LMO: We follow the evidences. We know Uganda was in DRC and we highlight that but we found no evidence connecting the Ugandan army or the Ugandan government with the crimes committed. That is why we charge Lubanga who is number 1. In Darfur we found president Bashir is most responsible, so we charged president Bashir. We follow the evidences, we are not following political wishes or ideas or ideologies.