By Sarah Steinfeld

On January 26, 2008, Thomas Lubanga became the first defendant tried at the International Criminal Court (ICC). Lubanga was allegedly the president of the Union of Congolese Patriots and the commander of its military. He has been charged with two counts of war crimes for conscripting child soldiers to further the war in the Democratic Republic of Congo. The ICC is now considering the participating victims’ application to add charges of inhumane treatment and sexual slavery against Lubanga under ICC Regulation 55. The treatment of the victims’ application highlights several challenges faced by the new Court.

Trial Chamber I responded to the victims’ application on July 14, 2009, stating that the Court could include additional charges against Lubanga. The Chamber held that Regulation 55(2) allows it to add charges based on new evidence at any time during the trial. The Chamber also ruled that it can suspend the hearing to give parties time to prepare for trial on the additional charges, and that parties will have a right to re-examine previous witnesses, call new witnesses, and present new evidence in light of the new charges. Both the Defense and the Prosecutor appealed the Chamber’s ruling, arguing that adding new charges would be unfair to the accused and could extend the trial for several more months, delaying future trials at the ICC. The trial has been suspended until the Appeals Chamber resolves this issue. 

The Regulation 55(2) appeal highlights several issues the ICC is facing. One challenge is determining the victims’ role, compared to that of the prosecution and defense. The ICC is the first international court to statutorily permit victims to participate independently from the prosecution and defense. The Rome Statute grants the Court discretion to allow victims to present their concerns “in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” However, as the Lubanga application itself points out, Regulation 55 fails to indicate which parties may request that the Court exercise this discretion.

Another challenge is the Chamber’s extension of the jura novit curia principle, under which a judge is allowed to independently recharacterize the charges based on existing facts. Through its interpretation of Regulation 55(2), the Chamber widely departs from this principle, allowing new facts and evidence to be introduced to support new charges at any time during the trial.

Finally, the present appeal slows the Lubanga trial, which has already been plagued by extensive delays. After delaying the trial for a year after the initial filing of charges, the Court has again delayed the trial pending the Regulation 55(2) appeal. If the Appeals Chamber affirms Trial Chamber I’s decision, the trial will be delayed once more to give the parties sufficient time to prepare for new charges. These delays as well as the Chamber’s procedural decisions have brought new attention to the inner workings of the new Court, specifically the ability of victims and judges to shape the proceedings.