The defense case in the trial of Thomas Lubanga has been postponed while appeal judges decide if it is possible to add charges of sexual slavery and cruel and inhumane treatment to the case.

“Before the evidence proceeds further, the accused should have certainty as regards these issues,” International Criminal Court, ICC, judges wrote on October 2, noting that the proceedings were originally scheduled to recommence this month after a three-month recess.

The judges also said that continuing the trial when the charges could change poses “too great a risk that the defense will proceed … on a significantly false basis”.

Lubanga, the former president of the Union of Congolese Patriots, UPC, currently faces charges of recruiting, conscripting and using child soldiers to fight in the inter-ethnic conflict in the Ituri region of the Democratic Republic of Congo, DRC, during 2002 and 2003. His trial began last January 26, and the prosecution rested its case on July 14.

The contentious debate over adding new charges began in May, when victims’ lawyers argued that young girl recruits in Lubanga’s militia were used as sex slaves, and that sending children into combat constitutes cruel and inhumane treatment. Therefore, the lawyers argued, the existing charges should be “reclassified” to reflect these additional crimes.

On July 14, judges ruled that it was possible to add new charges, provided they are based on existing evidence or on facts that have emerged during the trial.

Both the prosecution and defense appealed against the July 14 decision, but there is little indication when the appeal will be determined.

During a status conference held on September 17, participating victims and the prosecution said they were ready to proceed under the existing charges for the time being.

The defense objected.

“The defense is unable to continue with this trial if we don’t know the charges brought against the accused,” Catherine Mabille, Lubanga’s lead lawyer, told judges.

In a recent interview with the Lubanga Trial website, Mabille lambasted their July 14 decision.

“What is the [point] of having the preliminary chamber [decide on the charges] if you can change the charges after the end of the prosecutor’s case?” she said.

Mabille added that the addition of new charges would also cast doubt on the fairness of the proceedings and the right of the accused to be tried in a reasonable amount of time.

“We would have to call back all the prosecution witnesses, because we didn’t do any cross examination of crimes that didn’t exist at that time,” she said. “The defense will have to ask for lots of time to re-prepare its case.”

Mabille said the victims’ role should be in the reparations phase – not during the trial.

“At the moment, their role is too close to the role of the prosecutor,” she said. “We have to face the prosecutor, and then the victims. For us, it’s exactly the same.”