International Criminal Court judges have decided that Thomas Lubanga could be charged with sexual slavery and cruel and inhumane treatment.
The request to include new charges came on May 22 from victims’ lawyers.
It stemmed from the numerous witnesses who have testified about the rape and severe abuse of young recruits to Lubanga’s militia, the military wing of the Union of Congolese Patriots,UPC.
The victims contend that the existing facts and witness testimony indicate additional crimes, and the charges should be “reclassified” to reflect that. The process regarding the reclassification of charges is outlined in Regulation 55 of the court, which states that new charges can be added only if they are based on existing facts and evidence.
In a July 14 decision, trial judges Elizabeth Odio Benito and Rene Blattman agreed that new charges could be added but wrote that they could also be based on fresh evidence – not only on existing facts.
Lubanga is currently charged with conscripting and using child soldiers, including young girls, to fight in the ethnic battles that raged in the eastern Ituri region of the Democratic Republic of Congo, DRC, during 2002 and 2003.
In a 28-page dissenting opinion, presiding judge Adrian Fulford said that Regulation 55 should not be used to add, substitute, or amend the charges, since the prosecutor must request those changes before the trial begins.
Fulford was not convinced by the arguments in the victims’ request.
“In my view, the proposals advanced by the victims do not raise the possibility that the legal characterization of the facts may change. Instead, the victims seek to add five additional charges.”
He said if the defence should appeal the majority opinion, the trial should be allowed to continue while the appeal is being considered. Otherwise, the trial judges “will not be able to hear further evidence until the appeal is resolved.”
Defence lawyers argue that adding new charges after months of testimony and 30 witnesses would gravely breach Lubanga’s rights and his rights of due process.
The court is currently in recess, and a hearing on the possible addition of charges will be held later in the summer.
Why didnt the Prosecution bring up these charges when the trial began?
Our reporter, Rachel Irwin, recently asked the same question of Fatou Bensouda, the ICC’s deputy prosecutor. Here is what Ms. Bensouda said:
“First of all, I want to say that we investigated extensively. We had gathered a large amount of evidence, which has produced numerous leads. In February 2006, the office took the decision that we were going to charge Lubanga with enlisting and conscripting children. At that time the opportunity of arresting Lubanga presented itself and the evidence we were very confident about was enlisting and conscripting children. [Our investigations] took place under very difficult circumstances [in terms of] the security challenges and the heightened risks for victims. Given these challenges … and, [with] the approaching “confirmation of charges” hearing, we had to make a decision. We decided that our child soldier case was very strong… and this was evidence that we could present comfortably before the court… and we proceeded.
You can read the entire transcript of the interview with Ms. Bensouda here: http://www.lubangatrial.org/2009/07/31/interview-with-fatou-bensouda-icc-deputy-prosecutor/
By the way, The position of the Prosecutor as regards the possibility to include new charges againts Lubanga does not seem clear at all!
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