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.