The Appeals Chamber of the ICC has reversed the trial chamber in the Lubanga case. The decision, available here, reverses the trial chamber’s determination allowing the addition of charges. The chamber determined that court could amend charges, but was limited to the facts found at the confirmation of charges hearing.
The decision was interesting for a number of reasons, first that motion to add charges came not from the prosecutor but from the victims participating in the case. The victims sought to add charges of sexual slavery and inhuman or cruel treatment.
Thomas Lubanga Dyilo was brought before the court in March 2006, the court held a confirmation of charges hearing in November of 2006, and issued its decision confirming the charges January 29, 2007. Trial commenced on January 26, 2009. The court reasoned that after the confirmation of charges hearing and trial preparation, it was inconsistent for the court to amend the charges using fact which were not alleged at the confirmation of charges hearing.
The Lubanga case, being the first case before the ICC has had a number of decisions which will likely set the policy of the cases to follow. Foremost among those has been the ability of the victims to participate independently of the prosecution, and in this case seek amendment of the charges to include charges not sought by the Office of the Prosecutor. Victims have become a significant participant in the process.