Lubanga Defence Warn New Charges Threaten Trial

Thomas Lubanga’s legal team has strongly criticised a recent move to add new charges to the case against the accused rebel leader, just as the prosecution prepares to rest its case.



The request to include sexual slavery and cruel and inhumane treatment to Lubanga’s indictment came on May 22 from victims’ lawyers. It stems from the numerous witnesses who have testified about the rape and severe abuse of young recruits to Lubanga’s militia, the military wing of the Union of Congolese Patriots,UPC.



Lubanga is currently charged only with conscripting and using child soldiers, including young girls, to fight in the ethnic battles that raged in the eastern Ituri region of the Democratic Republic of Congo, DRC, during 2002 and 2003.



However, the victims’ lawyers contend that sexual slavery was part of being a female child soldier, and that sending young children into combat qualifies as cruel and inhumane treatment. Existing evidence before the court indicates additional crimes, the lawyers argue.



While the proposed charges would be new, ICC regulations say they could only be based on existing evidence, facts or witnesses.



It is now up to the trial judges to decide if the request has merit and if the charges can be added so late in the proceedings. The trial started January 26 and the prosecution is expected to rest its case in July.



Defence lawyers argue that adding new charges after months of testimony and approximately two dozen witnesses would “gravely breach the fundamental rights of the accused and his rights of due process”.



Jean-Marie Biju-Duval, one of Lubanga’s lawyers, 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.



That in turn would require the trial to be suspended “for quite a long period” so the defence has time to adequately prepare their case.



The entire process, he says, would excessively slow down the trial and threaten Lubanga’s right to be tried without unnecessary delay. “It creates an unbearable prejudice on the accused,” Biju-Duval said.



Lubanga has now been in ICC custody since March 2006. His trial has been delayed numerous times and was nearly abandoned altogether last year when judges found that prosecutors had witheld key evidence from the defence.



Beatrice Le Fraper Du Hellen, the head of ICC jurisdiction, complementarity and cooperation, described the move to add additional charges against Lubanga as “very interesting”.



She said the legal possibility of adding new charges exists but stressed it is up to judges to decide whether the victims’ request has enough merit to proceed.



The omission of sexual crimes from the case against Lubanga has long been controversial.



From the moment his indictment was announced, activists have insisted that excluding the charges was a mistake. ICC prosecutor Luis Moreno-Ocampo missed an opportunity to investigate the special circumstances of girl child soldiers, they say.



Le Fraper told IWPR that the reason Lubanga wasn’t charged with rape was because of the way their initial investigation was conducted, “[We had] too much evidence, not enough focus.”



When the opportunity arose to arrest Lubanga, she explained, they had to proceed with the evidence they had, which centred only on the recruitment of child soldiers.



“If we had thought we had evidence [of sexual crimes], we would have gone for it,” Le Fraper said.



But some activists say that it is impossible to examine the issue of child soldiers without also investigating the alleged repeated rape of young girl recruits.



“They can’t only prosecute Lubanga over child soldiers and not look at the issue of sexual violence,” said Roger Muchuba, secretary of the Bukavu, DRC-based human rights group Inheritors of Justice.



“Girls in the militia groups really suffered because they could be taken in group rapes,” he said. “They really suffered more than the boys.”



The prosecution is aware of this, said Le Fraper, and has made an effort throughout the trial to highlight the experience of girl soldiers.



Since the trial began, numerous witnesses have testified about the sexual abuse of female recruits.



One former soldier said that she was repeatedly raped. Others have said that girls were used as sex slaves, and that those who became pregnant were forced to abort using herbs grown locally.



All of the girl recruits, witnesses have emphasised, were also trained to fight and worked as bodyguards alongside male soldiers.



Many analysts have wondered why prosecutors have chosen to focus so prominently on female recruits when Lubanga does not face any charges related to sexual violence.



“I think there are a couple of different reasons why they keep focusing on it,” said Param-Preet Singh, a lawyer with Human Rights Watch. “It could be to establish the historical record, just to really shed light on the kind of suffering that girl child soldiers experience in terms of sexual violence.



“Another could be that they are doing it for sentencing purposes, for judges to take into account particularly the serious way the crimes were committed, which could be reflected in the sentencing.”



When asked about the prosecution’s strategy, Le Fraper said that they want to expose what happened to the girl recruits because they are often not thought of as real soldiers.



“It is very important to us to remind everybody that a child soldier is also a girl who has been abducted into the militia and used as a cook, [and] as a so-called wife,” she told IWPR.



In addition, she said that investigators saw female recruits being left out of reintegration projects for former child soldiers in the DRC.



“Just saying, ‘We’re not going to give those girls the protection afforded to child soldiers because all they did was to give sex’—that’s unacceptable,” Le Fraper said.



Even if new charges are not added at this stage, Le Fraper said there is still a possibility that the prosecutor might decide to bring them in the future, a move that could prompt a new trial.



“I understand there is no final decision,” she said. “It’s a possibility, but the priority now is to see how this first trial has impacted affected communities.”



Rachel Irwin is an IWPR reporter in The Hague. She writes daily updates on the Lubanga trial at www.lubangatrial.org. Wairagala Wakabi is a Ugandan journalist and frequent contributor to IWPR.