There’s been a curious development at the ICC since I was away that is worth keeping an eye on for those interested in following the precedent-setting decisions of the court’s first trial – against DRC militia leader, Thomas Lubanga Dyillo.
In essence, representatives of the victims are trying to get in charges of sexual slavery and cruel and inhuman treatment that many human rights organizations criticized the Prosecution for not charging from the outset. What is surprising is that the Majority of the Trial Chamber (Fulford dissenting) is considering the request. I started writing a summary and then saw that Kevin Jon Heller over at Opinio Juris has already done the work for me.
It is worth reading Heller’s analysis in full because the implications of where this ends up are significant. While my heart is with the representatives of the victims, my head is not. If the judges get to effectively “add” facts after the Prosecution has presented its case, not only does this impinge on the rights of the accused, but it also means the Prosecution loses its prerogative to determine the parameters of its case.
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