Lubanga’s defense team told judges on Thursday that it is impossible to commence with their case, since the issue of whether new charges will be added to the indictment remains unresolved.
“The defense is unable to continue with this trial if we don’t know the charges brought against the accused,” said Catherine Mabille, Lubanga’s lead lawyer.
The September 17 status conference was the first one to be held since the prosecution rested its case in July, and the future of the trial has become increasingly uncertain since then.
On July 14, a majority of judges ruled that it was possible to add charges of sexual slavery and cruel and inhumane treatment to the case.
While their original decision seemed to suggest that the charges could be based on fresh evidence, the judges later clarified their position, stating that the charges must be based on existing evidence or on facts that emerged during the trial.
The judges’ controversial decision was in response to a request from victims’ lawyers, who argued in May that existing facts and witness testimony indicated the additional crimes of sexual slavery and cruel and inhumane treatment.
Young girl recruits in Lubanga’s militia were used as sex slaves, the lawyers said, and sending children into combat constitutes cruel and unusual treatment. Therefore, the charges should be “reclassified” to reflect these additional crimes.
Both the prosecution and defense have appealed the judges’ July 14 decision.
They have also asked that the appeal be given “suspensive effect”, meaning that trial judges would not consider the issue of new charges until the appeals decision is determined.
If suspensive effect is not given, then new charges would likely be considered at the same time as the appeals process is taking place.
It is up to the appeals judges to grant suspensive effect, but they have not yet responded to this request.
Meanwhile, the trial judges have to decide how to proceed – an issue which dominated the two hour hearing.
The defense case was scheduled to begin in October, but Mabille made it clear that this is no longer an option for her team.
“Do you imagine we could call on the accused to give evidence when there are no defined charges?” she asked judges.
Both the prosecution and victims’ lawyers said they were ready for the trial to proceed under the existing charges, at least for the time being.
Luc Walleyn, a lawyer for victims, told judges that he didn’t see why the trial could not continue. He added that the victims’ lawyers did not seek to add new charges, but to “recharacterize the facts.”
“The facts have already been discussed,” Walleyn said. “We have no intention of discussing facts other than what [was discussed] in this courtroom.”
Presiding Judge Adrian Fulford questioned this assertion.
“Isn’t there a difference between having sexual slavery as background evidence and having sexual slavery as an element or ingredient of the charge the accused faces?” he asked.
Judge Fulford also said the court had to decide what to do about the testimony of two experts and three participating victims.
Mabille objected to the victims testifying before the matter of new charges has been resolved. Furthermore, she said, she was still waiting for information regarding their identities and would require at least a month to prepare once that information was released.
No decisions were made during the status conference as to when the trial would commence again, or when the experts and testifying victims would appear in court.