Lubanga case Mr Lubangas requests

Mr. Lubanga’s Request of 3 May and 24 May for Additional Resources

On 3 May 2007, the Presidency filed a public version of Mr. Lubanga’s request for additional resources per Article 83(3) of the Regulations of the Court. The first part of the request was made public whilst the second part, detailing the work of the Defence, was kept confidential.

Mr. Lubanga argued that additional resources were necessary to allow his team to complete their work because of the numerous delays, complaints and interruptions to proceedings stemming from the shortcomings in the legal assistance system, particularly when the withdrawal of the principal Defence Counsel was taken into account.

Equality of Arms

Mr. Lubanga recalled his right to a fair hearing as set out in Article 67 of the Rome Statute, arguing that his defence was at a disadvantage in the presentation of their case as they did not have sufficient resources. Referring to the Tadic case, he underlined the importance of true equality of arms, and recalled the European Court of Human Rights’ assertion that legal assistance must take into account the particular facts and circumstances of each case, particularly those which may complicate or elongate proceedings, when determining the resources given. Mr. Lubanga contended that the notion of procedural equality also meant that each party would have the opportunity to evaluate each piece of evidence which would be brought before the Court, but that the lack of manpower effectively meant that this opportunity was not open to the Defence. Thus the Registry was asked to provide additional resources in order to give real meaning to the rights assured to the Defence.

Mr. Lubanga also claimed that the problem of ill-advised use of funds by defence teams encountered by the ad-hoc tribunals had resulted in prejudice against Defence Counsel at the International Criminal Court. He asserted that his focus was on obtaining liberty by securing a competent defence team rather than on judicial manoeuvrings which prolonged the “humiliation inflicted upon him by his incarceration.” He argued that the fear of creating a precedent should not prevent the Registrar from fulfilling his statutory obligation to use his discretion in examining Mr. Lubanga’s request and allocating the necessary resources.

Reasons for Request

Mr. Lubanga gave a number of reasons which he contended had made additional resources necessary, namely:

• the complexity of judicial and factual proceedings stemming from the unprecedented nature of the case, this being the first case before the Court and the first charge for using child soldiers;


• the participation of victims which meant the defence had to face two adversaries;


• the problems encountered due to the lack of adequate resources (acknowledged by the Registry) in the preliminary phase, such as the reliance on unpaid interns and the consequences of the high volume of work on the health of members of the defence team and;


• the withdrawal of the principal Defence Counsel the day after the start of judicial proceedings.

Considering these arguments, Mr. Lubanga requested that the Registrar grant him an additional highly qualified defence attaché, a P1 and a P2 juridical assistant, a new budget for investigations and extra finances.

The instruction of the Presidency to the Registrar and the Registrar’s response

On 4 May 2007, the Pre-Trial Chamber I requested that the Registrar file observations on Mr. Lubanga’s request for additional means, specifically relating to the appended signature and its authenticity. The Registrar submitted its observations on 7 May 2007 stating that Mr. Lubanga’s signature was a separate image added to the rest of the request that was filed by Catherin Dobson, a member of the Defence team. The Registrar noted that almost all of Mr. Lubanga’s filings had been prepared in this format and that he had no way to refute the authenticity of the signature. In addition the Registrar made it clear that if the Chamber wished to examine the authenticity of Mr. Lubanga’s signature the Registrar would need to employ an expert designated by the Chamber or the Registrar.

Mr. Lubanga’s request of 24 May 2007

On 24 May 2007, Thomas Lubanga Dyilo submitted a request for involvement in the evaluation of his “Request for additional resources” submitted to the Registrar on 3 May 2007. He reiterated his assertion that the withdrawal of Mr. Flamme had left him at a serious disadvantage which was then compounded by Ms. Mabille’s hesitations. Arguing that the inadequacy of resources allocated to the Defence in the preliminary phase amounted to a prejudice against his team, he requested a swift resolution of the issue of additional resources, describing the inequality of arms as “scandalous.”

Mr. Lubanga went on to refute a number of arguments which he alleges were advanced by the Registrar in response, in particular the assertion that any decision on funds allocated to the Defence would at this stage be premature in that it could influence the appeal against the confirmation of charges and would go against the presumption of innocence and the neutrality of the Registrar. Mr. Lubanga argued that the appeal on the confirmation of charges did not effectively suspend other proceedings, and that should the Court decide to drop all charges the Defence would have no reason to use the additional funds they were requesting, but should the charges be maintained then those funds would need to be already in place to ensure an effective defence.

In his conclusion, Mr. Lubanga contended that throughout the preliminary phase the Defence had been at a disadvantage through lack of adequate resources. He reaffirmed his commitment to engaging with the Court and asked that the matter be rectified as soon as possible so as to eliminate the current stagnation in proceedings. He also asked that the Court require the Registrar to take all necessary measures to guarantee the additional resources needed.