Gender Report Card on the International Criminal ... - YWCA Canada

Trial Proceedings
oral objections to the interview’s content and to
the Office of the Prosecutor’s failure to respect its
obligations of impartiality. 1210
Mabille alleged that the Office of the
Prosecutor had been ‘instrumentalised’ by
certain state powers, specifically the Congolese
Government. She clarified: ‘We do not allege
that the Prosecutor intentionally served the
interests of one of these powers, but it has
been shown that the Congolese government
in many ways intervened, directly or indirectly,
in the investigations as well as in the judiciary
process [sic].’ 1211 She noted that Intermediary
316 ‘was a person in a high level of authority
in a governmental agency directly related to
the central power, directly related to President
Kabila’, and further that he was not the only
Prosecution intermediary to have worked for
that agency simultaneously with his work for
the Office of the Prosecutor. 1212 She went on to
argue that the Prosecutor was aware of both
the sensitive role played by Intermediary 316 on
behalf of the Congolese Government and the
allegations that he had behaved in a ‘suspicious
way’ with certain witnesses. 1213 Mabille argued
that the clearly falsified evidence presented to
the Court was attributable to the Prosecutor’s
failure to carry out proper investigations. 1214
She pointed out the Prosecutor’s statutory
obligation to investigate incriminating and
exculpatory evidence equally. She contrasted
this with the statement of Bernard Lavigne,
the head of investigations at the Office of the
Prosecutor until 2007, who testified in closed
session in November 2010, that the verification
1210 ICC-01/04-01/06-T-268-Red-ENG, p 40 line 24 to p 43
line 8.
1211 ICC-01/04-01/06-T-357-ENG, p 12 lines 22-25; p 13 lines
1-4; ICC-01/04-01/06-2773-Red, paras 10-12; ICC-01/04-
01/06-2786-Red, para 111.
1212 ICC-01/04-01/06-T-357-ENG, p 13 lines 7-14.
1213 ICC-01/04-01/06-T-357-ENG, p 13 lines 15-20.
1214 ICC-01/04-01/06-T-357-ENG, p 15 lines 18-22; ICC-01/04-
01/06-2773-Red, paras 13-18. The Defence also made
this argument in its abuse of process filing; see ICC-
01/04-01/06-2657.
of Prosecution evidence had been entrusted
to intermediaries due to security concerns,
and that Prosecution investigators had never
contacted the families of alleged child soldiers,
local schools or chiefs of collectivities to verify
the information they had provided. 1215 Mabille
questioned how the Chamber could consider
as satisfied the requirement of proof beyond
a reasonable doubt when there had been no
investigations to verify the statements made
by the individuals called to testify, despite
the Prosecution assertion in its response to
the Defence abuse of process application in
early 2011 that there was no reason to doubt
their testimony. 1216 Mabille argued that the
entirety of the evidence in the case had been
tainted by the methods used in the Prosecutor’s
investigations. 1217
In the absence of credible witness testimony,
Mabille argued that visual evidence alone was
not sufficient to prove the age of an individual
beyond a reasonable doubt. 1218 Mabille argued
that NGO and UN documentation regarding
child soldiers had not been independently
verified by the Prosecution, leaving her to
conclude that ‘[a]gain, the Prosecution is rolling
the dice but not very lucky’. 1219 As a result, the
Defence argued, the Prosecutor had not provided
adequate evidence to prove beyond a reasonable
doubt that children under the age of fifteen
years were recruited into the UPC/FPLC. 1220
1215 ICC-01/04-01/06-T-357-ENG, p 16 lines 3-7, p 17 lines
7-23; p 18 lines 1-9.
1216 ICC-01/04-01/06-T-357-ENG, p 18 lines 11-13, 17-22. In
its closing briefs, the Defence relied extensively on the
arguments set forth in its abuse of process challenge
concerning the role of intermediaries in the fabrication
of evidence.
1217 ICC-01/04-01/06-T-357-ENG, p 19 lines 7-24; ICC-01/04-
01/06-2773-Red, para 9.
1218 ICC-01/04-01/06-T-357-ENG, p 20 lines 5-8, 18-21.
1219 ICC-01/04-01/06-T-357-ENG, p 21 lines 2-13.
1220 ICC-01/04-01/06-T-357-ENG, p 22 lines 3-8 ICC-01/04-
01/06-2773-Red, paras 86-89.
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