Prosecutors have asked judges for leave to appeal a July decision that new charges could be brought against Thomas Lubanga.
The addition of new charges at this stage in the trial, prosecutors argue in their August 12 filing, would “significantly affect the fairness of the proceedings” and allow the accused to be “tried and convicted … based on facts that were not presented in the charging document.”
Until the judges’ July 14 decision, however, the issue at hand was not whether brand new charges – based on new evidence – could be added during the trial.
Rather, victims’ lawyers had argued in a May 22 filing 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 argued, and sending children into combat constitutes cruel and unusual treatment. Therefore, the charges should be “reclassified” to reflect these additional crimes.
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.
But a majority of judges challenged that interpretation of Regulation 55 in their July 14 decision on the victims’ request. They ruled that it was possible to add new charges based on fresh evidence – not only on existing facts.
In his dissenting opinion, Presiding Judge Adrian Fulford disagreed with his colleagues’ interpretation of Regulation 55. He also contended that the victims should not be able to use court regulations to essentially add new charges to the case.
Prosecutors cite Judge Fulford’s opinion in their application to appeal, and write that the majority’s decision has the potential to radically alter the entire trial.
Instead of using existing evidence to possibly determine new charges, the judges were potentially allowing the introduction of entirely fresh evidence – even though the prosecution has already rested its case.
“The trial is half-way completed, based on the facts set out in the charges the prosecution filed three years ago and the Pre-Trial Chamber confirmed,” prosecutors wrote.
“…In expanding the trial’s factual basis, the decision will require the parties to investigate, prepare and address incidents and events that were not pleaded,” they continued.
This, the prosecution says, is unfair to the accused and could drag out the trial for several more months.
A delay in the Lubanga trial could also delay future trials at the ICC because of “limited availability of courtrooms and court services.”
The prosecution requests a swift and “definitive” ruling from appeals judges so all the parties involved can prepare their upcoming cases “with greater ability to forecast the factual basis and scope of the charges.”
The defense has not indicated whether it will also appeal the judges’ decision.
While a hearing on the possible addition of new charges was supposed to take place, it is unclear now when or if that will happen.