1 Prosecutor v. Lubanga Dyilo, Decision sur la confirmation des charges, Case No. ICC-01/0 4–01/06 (Int’l Crim. Ct. Pre-trial Chamber I, Jan. 29, 2007), at <http://www.icc-cpi.int/library/cases/ICC-01–04–01–06–803_French.pdf> [hereinafter Lubanga Decision]. Pre-trial Chamber I comprised Judges Claude Jorda, Akua Kuenyehia, and Sylvia Steiner. The French version of the decision, upon which this report is based, is the original and authoritative version.

2 In September 2002, the UPC was renamed the Union des patriotes congolais/Réconciliation et Paix, and Lubanga became its president. Id., para. 8.

3 Phil, Clark, In the Shadow of the Volcano: Democracy and Justice in Congo Dissent, Winter 2007, at 29, 31, available at <http://dissentmagazine.org/article/?article=724>>Google Scholar.

4 Id. at 29. Some estimates are higher. See, e.g., Stephanie, McCrummen, For Tutsis of Eastern Congo, Protector, Exploiter or Both? Wash. Post, Aug. 6, 2007, at A1Google Scholar (“at least 4 million”).

5 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, available at <http://www.un.org/law/icc/> [hereinafter Rome Statute]. For more information on the situation in the DRC, see <http://www.icc-cpi.int/cases/RDC.html>.

6 See also Article 61 (5) of the Rome Statute, which provides: “At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.” For simplicity of expression in the case report, the embedded qualifications about the evidence (e.g., “sufficient evidence to establish substantial grounds to believe”) will not be included in the present discussion of the pretrial chamber’s reasoning. It should be understood that the pretrial chamber is not making final determinations of fact, but only of sufficiency for moving forward to the next stage in the proceedings.

7 Article 61 (10) of the Rome Statute provides that “any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor.”

8 The chamber’s language is as follows: “à apporter des éléments de preuve concrets et tangibles, montrant une direction claire dans le raisonnement supportant ses allégations spécifiques. De plus, le critère des ‘motifs substantiels de croire’ doit permettre d’évaluer l’ensemble des éléments de preuve admis aux fins de l’audience de confirmation des charges, consideres comme un tout.”

9 The evidence considered by the chamber included declarations and testimony by individuals, Mission des nations unies en République Démocratique du Congo reports, UN reports, video footage of Lubanga, and Human Rights Watch reports.

10 Article 25(3) of the Rome Statute provides: “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible[.]”

11 See, in a different context, the AFRC Judgment, infra note 24, para. 733.

12 The prosecutor also had submitted that Lubanga’s criminal responsibility began on July 1, 2002 (before the creation of the FPLC), and continued beyond his entering into detention in Kinshasa through to the end of 2003. The confirmed charges, however, encompass only the time frame of September 2002 to August 13, 2003.

13 Pre-trial Chamber I asserted it was comfortable adding these charges, instead of following Article 61(7)(c)(ii) (which provides for adjourning the hearing and requesting the prosecutor to amend the charges), owing to its conclusion that the protective scope of Articles 8 (2) (b) (xxvi) and 8 (2) (e) (vii) was similar (similaire) and that the articles proscribe the same conduct (erigefntj le meme comportement en crime) (para. 204).

14 The chamber’s understanding of Ugandan involvement in Ituri—and of how this involvement internationalized the armed conflict—largely meshes with the 2005 judgment of the International Court of Justice (ICJ) in Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) (Dec. 19). In that judgment, the ICJ ruled that Uganda, during its occupation of Congolese territory in the Ituri region, had engaged in the unlawful use of force and committed massive violations of international humanitarian and human rights law. In Lubanga (paras. 21 2–17) the pretrial chamber cited and relied upon the ICJ’s Armed Activities judgment. The ICJ had found evidence that children were trained to be soldiers in Ugandan Peoples’ Defence Forces (UPDF) camps and also that Ugandan forces failed to prevent the recruitment of child soldiers within areas those forces controlled. See James Thuo, Gathii, Case Report: Armed Activities on the Territory of the Congo, 101 AJIL 142, 144 (2007).Google Scholar At one point, the UPDF backed the UPC. In the Lubanga Decision, Pre-trial Chamber I determined the conduct of the UPDF to be attributable to Uganda (para. 216). Over time, Uganda supported multiple sides in the Ituri conflict (para. 189). Uganda stopped backing the UPC when Rwanda made an alliance with the UPC (para. 221).

15 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 77(2), 1125 UNTS 3 (1977) (“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.”).

16 The chamber also found, however, that the language was not limitless, and thus excluded from its purview conduct such as food delivery to an airbase or domestic help in married officers’ quarters (para. 262) (“la livraison de denrées alimentaires à une base aérienne ou l’emploi de personnel domestique dans les quartiers réservés aux officiers mariés ne peut tomber sous le coup de cet article”).

17 This question concerning the definition of “national armed forces” does not arise in relation to noninternational armed conflict: Article 8(2)(e)(vii) simply refers to “armed forces or groups.”

18 The chamber’s language is as follows: “La notion de coaction fondée sur le contrôle exercé conjointement sur le crime a pour origine le principe de la division des tâches essentielles en vue de la commission d’un crime entre deux ou plusieures personnes agissant de manière concertée.”

19 The chamber’s language is as follows: “Ainsi, bien qu’aucune de ces personnes ne détiennent le contrôle d’ensemble de l’infraction parce qu’elles dépendent toutes les unes des autres pour sa commission, elles partagent toutes le controle car chacune d’elles pourrait compromettre la commission du crime si elle n’exécutait pas sa tâche.”

20 Article 67(11) of the Rome Statute provides: “Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.”

21 The judges are Elizabeth Odio Benito, René Blattmann, and Adrian Fulford.

22 Rome Statute, supra note 5, Art. 66(3).

23 For a roadmap of Trial Chamber I’s preparatory hearings in the Lubanga case, see ICC Press Release, Prochaines audiences en vue de la préparation du procès de Thomas Lubanga Dyilo (August 3, 2007), at <http://www.icc-cpi.int/press/pressreleases/264.html>.

24 Prosecutor v. Brima (AFRC), Case No. SCSL-200 4–16-T, Judgment (Spec. Ct. Sierra Leone, Trial Chamber II, June 20, 2007), at <http://www.sc-sl.org/AFRC.html> [hereinafter AFRC Judgment]. Article 4(c) of the SCSL Statute, at <http://www.sc-sl.org/scsl-statute.html>, codifies child-soldiering crimes: “The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: . . . ( c ) Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.” This issue of the journal includes a case report by Valerie Oosterveld and Andrea Marlowe on AFRC and the CDF case (see infra notes 3 0–32 and accompanying text).

25 Prosecution v. Brima (AFRC), Case No. SCSL-200 4–16-T, Sentencing (Spec. Ct. Sierra Leone, Trial Chamber II, July 19, 2007), at <http://www.sc-sI.org/Documents/AFRC_19JUL07_SEN.pdf>.

26 AFRC Judgment, supra note 24, para. 729.

27 Id., para. 736. Regarding the crime of the use of children to participate actively in hostilities, SCSL Trial Chamber II, id., para. 737, took an approach similar to that of Pre-trial Chamber I in Lubanga. The SCSL trial chamber held that the use of children to participate actively in hostilities is not limited to participation in combat. An armed force requires logistical support to maintain its operations. Any labor or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation. Hence, carrying loads for the fighting faction, finding and/or acquiring food, ammunition, or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fighting and combat.

28 Id., para. 734.

29 Id., para. 735.

30 Prosecutor v. Norman, Case No. SCSL-200 4–14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (Spec. Ct. Sierra Leone, Appeals Chamber, May 31, 2004), at <http://www.sc-sl.org/Documents/SCSL-04–14-AR72(E)-131–7383.pdf>.

31 Prosecutor v. Fofana (CDF), Case No. SCSL-0 4–14-T, Judgment (Spec. Ct. Sierra Leone, Trial Chamber I, August 2, 2007), at <http://www.sc-sl.org/CDF.html>. Judge Thompson, dissenting, would have acquitted both accused on all counts.

32 Judge Mutanga Itoe dissented from Fofana’s acquittal on the count of enlistment or use of child soldiers. SCSL Trial Chamber I generally noted that the “trial record contains ample evidence that the [Civil Defence Forces] as an organisation was involved in the recruitment of children under the age of 15 to an armed group, and used them to participate actively in hostilities.” Id., para. 963.

33 Id., para. 183.

34 Clark, supra note 3, at 34.

35 Id.

36 See generlly, Mark, A. Drumbl, Atrocity, Punishment, and International Law 63, 123–47, 187–94, 201 (2007).Google Scholar

37 McCrummen, supra note 4 (reporting that “U.N. officials warn that Congo is on the brink of another all-out conflict”).

38 Jeffrey, Gettleman, Savage Rapes Stoke Trauma of Congo War N.Y. Times, Oct. 6, 2007, at A1.Google Scholar

39 Jason, Morgan-Foster, ICC Confirms Charges Against DRC Militia Leader ASIL Insight, n. 16 (Mar. 9, 2007)Google Scholar (citing prosecutor’s leave to appeal application).

40 Prosecutor v. Lubanga Dyilo, Case No. ICC-01 /0 4–01 /06, Decision on the Prosecution and Defence Applications for Leave to Appeal the Decision on the Confirmation of Charges (Int’l Crirn. Ct., Pre-trial Chamber I, May 24, 2007), at <http://www.icc-cpi.int/library/cases/ICC-01-04–01–06–915_English.pdf> . In addition to the substitution of charges, the defense stated several other grounds, all of which were dismissed, in its application for leave to appeal. The ICC appeals chamber dismissed a further residual defense appeal on June 13, 2007. At <http://www.icc-cpi.int/library/cases/ICC-01-04–01-06–926_English.pdf>.

41 Article 61(7) of the Rome Statute provides:

Based on its determination, the Pre-Trial Chamber shall:

• (a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed;

• (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence;

• (c) Adjourn the hearing and request the Prosecutor to consider:

  • (i) Providing further evidence of conducting further investigation with respect to a particular charge; or

  • (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.

Pre-trial Chamber I noted that the putpose of Article 67(7) (c) (ii) was to protect the defense by preventing a person from being tried on charges that would be materially different from those initially set out. Lubanga Décision, para. 203.

42 Rhonda, Copelon, Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law 46 McGill L. J. 217, 225 (2000).Google Scholar