The first – and, so far, the only – trial at the International Criminal Court has run into yet more problems. As a result, the defence case will not open next week, as had been planned, and a verdict seems unlikely before next year.
In July, the prosecution wrapped up its case after five months of evidence against the Congolese militia leader Thomas Lubanga.
The best account of what’s going on is to be found on this independent website, although it is also possible with a bit of digging to find transcripts and court rulings on the court’s own site. A good starting point would be this page.
Lubanga is charged with recruiting, conscripting, and using child soldiers, defined as fighters under the age of 15, in the ethnic conflicts that raged throughout the Ituri region of the Democratic Republic of Congo, DRC, between 2002 and 2003.
But the prosecutor, Luis Moreno-Ocampo, seemed unable to confine the evidence to the allegations against the defendant. Instead, in his opening statement, he introduced allegations that young girl soldiers had been treated as “sexual slaves”.
However, as Rachel Irwin explains, Lubanga was not charged with rape or crimes relating to sexual violence.
This became increasingly significant during the trial, as witness after witness testified that young girl soldiers were repeatedly raped by commanders. Witnesses claimed that these girls often became pregnant and some underwent crude abortions as a result.
The testimony about rape was so frequent that, on May 22, lawyers for 99 victims participating in the trial asked judges to add in charges of sexual slavery and cruel and unusual treatment to Lubanga’s indictment.
On July 14, the trial chamber ruled by a majority of two to one that new charges could be brought.
The presiding judge, Adrian Fulford, delivered a 28-page dissenting opinion in which he said that the relevant regulation should not be used to add, substitute or amend the charges. In his view, the prosecutor could request such changes only before a trial begins.
Judge Fulford suggested that the Lubanga trial should be allowed to continue on the basis of the existing charges while any appeal by the defence was being considered.
Appeals were indeed lodged, by the prosecutor as well as by the defence. These remain unresolved by the appeals chamber.
Defence lawyers told the court last month that they could not proceed until they knew whether Lubanga would face further charges.
Yesterday, the trial chamber adjourned the trial until the appeals chamber has delivered its ruling. As the court said:
The Chamber is persuaded that a necessary precondition for the “effective preparation” of the accused’s defence, at this stage in the trial, is that Mr Thomas Lubanga Dyilo should know whether or not the legal characterisation of the facts may be subject to change, so as to include the elements of sexual slavery, inhuman treatment and cruel treatment.
Additionally, he is entitled to know whether or not any potential modification of the legal characterisation of the facts is to be limited by the facts and circumstances contained in the charges.
Therefore, now that the prosecution has concluded its evidence, and before the evidence proceeds further, the accused should have certainty as regards these issues. The course of questioning all the outstanding witnesses in the case may be affected by the Appeal Chamber’s decision.
If the case continues on 6 October 2009, the defence will be placed in the unfair position of having to choose, on the one hand, between expending its time and resources in preparing for, and presenting its case on the basis of, a legal characterization of the facts that may be subject to change, along with the evidence in support (which may become irrelevant if the appeal is allowed), and, on the other, commencing the presentation of the defence evidence on the original formulation of the charges, when it may later have to adopt a different strategy (if the Decision of the Majority is upheld).
In the latter event, the defence may apply to recall many of the witnesses who have already given evidence. It follows that if the Chamber continues to hear evidence in the case prior to the decision of the Appeals Chamber on the substantive issue, there is too great a risk that the defence will proceed, as least for part of the trial, on a significantly false basis.
This ruling is clearly right and, indeed, inevitable. Judge Fulford clearly saw it a mile off. He understands better than anyone else at the International Criminal Court that the priority is to complete this trial as speedily as possible. As Mr Justice Fulford, he also has a judicial career ahead of him in England and Wales.
A criminal trial is not a public inquiry into every crime that may have been committed. It is method of establishing whether a defendant is guilty of the charges brought against him.
This case should have been over by now. More than six years after Luis Moreno-Ocampo became prosecutor of this ill-fated court, he has not achieved a single conviction. He is nowhere near completing his first trial. He should never have been appointed.
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