First Trial at International Criminal Court Likely to be Delayed Two Months

There will be a delay of over two months before the first trial commences at the world's first permanent war crimes court.^[1] A judge stated Wednesday, that the delay was the result of defense attorneys being given insufficient time to prepare their defense for a Congolese militia leader.^[2] Judges had hoped that the trial of Thomas Lubanga, the aforementioned militia leader, would begin on March 31st.^[3]

Lubanga denies the charges against him which allege that he conscripted and used child soldiers to fight in a fierce tribal conflict in eastern Congo in 2002-2003.^[4] As previously reported here, Mr. Lubanga is alleged to have committed war crimes by enlisting, conscripting and using children under age 15 to the military so that they may actively participate in hostilities.^[5] Due to his alleged involvement with the Forces Patriotiques pour la Libération du Congo (FPLC) between September 2002 and August 13, 2003,^[6] the Prosecutor has brought charges on the basis of individual criminal responsibility under Article 25(3)(a) of the Rome Statute.^[7] Article 62 of the Rome Statute will determine the location of the trial. That article declares that the place of the trial shall be the seat of the Court unless otherwise decided.^[8]

Presiding Judge Adrian Fulford stated that two unresolved problems are delaying commencement of the trial.^[9] The first is the involvement of victims in the trial. Second, is the disclosure of evidence by prosecutors to the defense attorneys.^[10] According to Catherin Mabille, Lubanga's lawyer, she has only been given a small portion of the evidence she requires to prepare his defense.^[11]

Prosecutors were ordered last year to provide the defense with all of their evidence three months prior to trial so that Lubanaga would have time to prepare.^[12] Fatou Bensouda, Deputy Prosecutor on the case, said that she has already given the defense attorneys details on many of the 35 witnesses she plans to call.^[13] According to her, the prosecutors are prepared to begin the trial on March 31st.^[14]

The Lubanga trial will highlight the first appearance of victims as a third party in the proceedings.^[15] The appeals chamber is still pondering the manner in which many victims will be permitted to participate and the limitations that will be placed upon their participation.^[16] The use of these victims could range from merely observing the proceedings to their participation as questioning witnesses.^[17]


Participation of victims and witnesses during the trial is governed by Article 68 of the Rome Statute.^[18] It states that, so long as the meaures taken are not prejudicial to or inconsistent with the rights of the accused and a fair impartial trial, the Court shall take necessary measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.^[19] Article 43 provides that The Victims and Witnesses Unit shall aid the court or the prosecutor as to what measures are approopriate for the witnesses and victims.^[20]

Authorities in the Congo, as well as human rights groups around the world, have welcomed the decision to put Lubanga on trial.^[21] They view it as a significant step for victims of the country's tribal battles and civil war which have killed approximately 4 million people by way of fighting, famine or disease.^[22]

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[1] The Associated Press, Congo War Crimes Trial Likely to be Delayed to Give Defense More Time to Prepare, The International Herald Tribune, Feb. 13, 2008 (available at http://www.iht.com/articles/ap/2008/02/13/europe/EU-GEN-War-Crimes-Congo.php).
[2] Id.
[3] Id.
[4]Id.
[5] Pre-Trial Chamber I commits Thomas Lubanga Dyilo for trial, (Press Release), ICC-CPI-20070129-196-EN, Jan. 29, 2007.
[6] Id.
[7] Rome Statute of the International Criminal Court, AU.N. Doc. A/CONF.183/9, Art. 25(3)(a). [hereinafter Rome Statute]
[8]Rome Statute, Art. 62.
[9] The Associated Press, Congo War Crimes Trial Likely to be Delayed to Give Defense More Time to Prepare, The International Herald Tribune, Feb. 13, 2008 (available at http://www.iht.com/articles/ap/2008/02/13/europe/EU-GEN-War-Crimes-Congo.php).
[10] Id.
[11]Id.
[12]Id.
[13]Id.
[14]Id.
[15]Id.
[16]Id.
[17]Id.
[18]Rome Statute, Art. 68.
[19]Rome Statute, Art. 68(1).
[20]Rome Statute, Art. 68(4).
[21]The Associated Press, Congo War Crimes Trial Likely to be Delayed to Give Defense More Time to Prepare, The International Herald Tribune, Feb. 13, 2008 (available at http://www.iht.com/articles/ap/2008/02/13/europe/EU-GEN-War-Crimes-Congo.php).
[22] Id.