The participation of victims in the trial of Congolese militia leader Thomas Lubanga has fundamentally changed the course of the proceedings, observers say.

A total of 99 victims represented by seven lawyers are participating in the Lubanga trial at the International Criminal Court, ICC. The lawyers are present in the courtroom each day, where they are able to question witnesses and put their clients’ views.

It is the first time that victims have been able to present their views and concerns before an international court.

“The landscape of international criminal justice has changed perhaps forever, because of the role of the victims,” said Lorraine Smith, who monitors the ICC for the International Bar Association, IBA.

Victims can apply to participate in trials at the ICC if they are able to prove a link to the crimes in the indictment. Some are also witnesses for the prosecution.

Analysts say they have shaped the Lubanga trial – the first to take place at the ICC – in ways large and small.

However, their most significant contribution so far was the application by their lawyers to add charges of sexual slavery and cruel and inhumane treatment to the indictment, just as the prosecution prepared to close its case this spring.

Currently, Lubanga only faces charges of enlisting, conscripting and using child soldiers to fight in the military wing of his group, the Union of Congolese Patriots, UPC, during the Ituri region’s inter-ethnic conflict during 2002 and 2003.

The victims’ lawyers contend that months of witness testimony on rape and severe abuse in Lubanga’s militia warranted the addition of the new charges. They say that sexual slavery was part of being a child soldier, and that sending children into combat constitutes cruel and unusual treatment.

The existing facts and witness testimony indicated additional crimes, the lawyers said, and the charges should be “reclassified” to reflect that.

A majority of the trial judges ruled on July 14 that it was possible to add new charges and controversially ruled that the new charges could be based on fresh evidence – not only on existing facts.

Both the prosecution and defence have asked for leave to appeal against the July 14 decision. The judges have not yet responded.

How this will ultimately impact the proceedings is still unclear, but the recent developments have pushed the complicated issue of victims’ participation to the forefront.

“The trial has been undeniably altered by the influence of the victims,” said Kevin Jon Heller, a senior lecturer at Melbourne Law School.

According to Heller, the idea that victims can simply ask for brand new charges mid-way through the trial is troubling.

If the judges’ July 14 decision is affirmed, he said, it would mean that the Lubanga case may need to be re-investigated.

The prosecution expressed a similar concern in their leave to appeal, writing, “The decision will require the parties to investigate, prepare and address incidents and events that were not pleaded.”

This, said Heller, could set a dangerous precedent.

“When would a defendant ever be safe, if at any point during a trial … the chamber can just re-characterise the facts to add new charges?” he told IWPR. “You can never be certain that your defence is adequate or adequately tailored to the charges, because you’ll never know what the charges are.”

But Smith, of the IBA, told IWPR that the victims are simply exercising the rights they have been given, which include presenting their views and concerns to the court.

She said that while the victims’ request has made a striking impact on the trial, it is ultimately the judges who must “ensure that the defence rights are not jeopardised at this crucial stage”.

Param-Preet Singh, a lawyer with Human Rights Watch, agreed.

“It goes back to the judges and what they decide is the proper balance, making victims participation meaningful and protecting the rights of the defence.”

Smith, however, acknowledged that the timing of the victims’ request was “unfortunate” given how far the trial had progressed.

“It really does put the defence in a difficult position,” she said. “What is important going forward is that we don’t have a situation where the presence of victims ends up being unfair.”

One of Lubanga’s defence lawyers, Jean Marie Biju-Duval, told IWPR in June that adding new charges would “gravely breach the fundamental rights of the accused and his rights of due process”. He said that new charges would mean that all the prosecution witnesses would have to return to court so that the defence could question them for a second time.

“It creates an unbearable prejudice on the accused,” Biju-Duval said.

The defence is scheduled to begin its case in October, but that date is now subject to the outcome of any appeals.

But lawyers for victims say they made their intentions clear from the very first day of the trial on January 26.

During her opening statement, Congolese lawyer Carine Bapita alleged that girl recruits were raped and beaten in Lubanga’s militia.

She told judges that the victims’ “wish to reserve the right to request from your chamber a classification of the crime of sexual slavery against the accused Thomas Lubanga.”

Lawyers for victims say that the current charges have never reflected the actual experience of their clients.

“Probably the prosecution considers that obtaining a conviction is more important than the qualification of the charges, and that different aspects can be taken into account when it comes to the debate on punishment,” Luc Walleyn, a lawyer for victims, told IWPR.

“But for our clients, the number of years in prison Mr Lubanga should receive is not the first concern. They want the reality of these crimes being recognised, and that’s why we made the filing.”

But Heller argues that the scope of the charges is not something the victims can control.

“Victims have an absolute right to lobby, submit briefs, argue in the court of public opinion, but it is the prosecutor’s final decision to bring charges,” he said.

As IWPR reported on June 25, the lack of sexual violence charges in Lubanga’s indictment has long been a point of contention among victims and NGOs.

While Heller acknowledged that it is “appalling” these charges were not brought in the first place, “It is not the role of victims at trial to be deciding what charges are brought.”

But advocates say that is precisely why victims’ participation exists.

“If the trial is missing the significant point of what happened in [the victims’] experience, the whole point of victims’ participation is that it can be rectified,” said Mariana Goetz, ICC programme advisor at REDRESS, which works on behalf of torture victims.

“This is a way of avoiding the excluding nature of the proceedings [at ad-hoc tribunals which do not allow victims’ participation], where you have the need for victims to mobilise in an angry way against a process because it’s not responding to their reality,” she said.

Observers acknowledge that the victims have been able to broach issues that the prosecution would not think to bring up.

“There are specific instances where victims have really added to the whole trial process and understanding of issues,” said Smith.

She pointed to the issue of names in the Democratic Republic of the Congo, DRC, which became significant after the defence noted that names of witnesses differed among the various documents submitted to the court.

Since this discrepancy could threaten witness credibility, lawyers for victims submitted an analysis on the history, process and legal context of naming in the DRC.

As a result, judges decided to bring in a Congolese expert on the subject, who will testify as court’s witness when the trial resumes.

“They have a value that they’ve brought to the process because of local expertise and knowledge,” said Smith.

Walleyn said this local expertise is crucial to the trial.

“There is a big gap between the trial in The Hague and the reality in Ituri,” he said. “Without the presence of victims, I am afraid the procedure would have been seen by many people of Ituri as a surrealistic event.”