On January 29, 2007, the International Criminal Court (ICC) Pretrial Chamber I (Chamber) issued its confirmation of charges decision in the case of Prosecutor v. Thomas Lubanga Dyilo, clearing the way for the ICC's first trial. The Chamber ruled that there were substantial grounds to believe that Lubanga - the President of the Union des Patriotes Congolais (UPC) and the Commander-in-Chief of its former military wing, the Forces Patriotiques pour la Libération du Congo (FPLC) - is responsible for committing war crimes in the Ituri region of the Democratic Republic of the Congo (DRC) in 2002 and 2003. Specifically, the Chamber confirmed that there were substantial grounds to believe that Lubanga was responsible, as co-perpetrator, for the conscription and enlistment of children under the age of 15 years into the FPLC from the beginning of September 2002 to June 2, 2003 in violation of Articles 8(2)(b)(xxvi) and 25(3)(a) of the Rome Statute; and from June 2, 2003 to August 13, 2003 in violation of Articles 8(2)(e)(vii) and 25(3)(a). The Lubanga case is only the second major international criminal proceeding to focus on the use of child soldiers, following the decision of the Special Court for Sierra Leone in the case of Prosecutor v. Sam Hinga Norman in 2004.
As required under Article 61 of the Rome Statute, the Chamber heard the submissions of the participants and observations of the Legal Representatives of the Victims at a confirmation hearing held from November 9 to 28, 2006. An arrest warrant for Lubanga was issued on February 10, 2006, and Lubanga was transferred to the ICC detention center in The Hague on March 17, 2006. On August 28, 2006, the Prosecutor, Luis Moreno-Ocampo, charged Lubanga underArticles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute with the war crimes of (1) conscrip ting children into armed groups, (2) enlisting children into armed groups, and (3) using children to participate actively in hostilities.
Article 8(2)(e)(vii) provides that "[c]onscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities" during a non-international armed conflict constitutes a war crime. Article 25(3)(a) provides for individual criminal responsibility for anyone who "[c]ommits - a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible".
Confirmation of Charges
After disposing with a number of evidentiary and procedural questions, the Chamber analyzed each of the charges in detail. First, the Chamber examined the nature of the armed conflict in the DRC, concluding that between July 2002 and June 2, 2003 there existed in the Ituri region an international armed conflict and between June 2, 2003 and August 13, 2003, a non-international armed conflict. The Chamber noted that the Prosecutor had charged Lubanga under Article 8(2)(e)(vii), which applies to non-international armed conflict, without reference to Article 8(2)(b)(xxvi), which applies to international armed conflict. The Chamber acknowledged that Article 61(7)(c)(ii) of the Rome Statute provides that, if the evidence submitted for the confirmation of charges appears to establish a different crime within the jurisdiction of the Court, the Chamber shall adjourn the hearing and request the Prosecutor to amend the charges. It nonetheless concluded that in this case, it was not required to adjourn the hearing and request such an amendment to the charges because the prohibition on conscripting or enlisting child soldiers provided in Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) was essentially the same. It thus effectively added the charge under Art. 8(2)(b)(xxvi) sua sponte.
The Chamber next turned to the three material elements of the crime. First, in examining the terms "conscription or enlistment," the Chamber noted that these terms in the Rome Statute do not carry the same meaning as "recruiting," the term used with respect to the prohibition against child soldiers in Article 77 of Additional Protocol I to the Geneva Conventions. It further concluded that "conscription and enlistment" are distinct from each other; conscription is forced recruitment whereas enlistment is voluntary recruitment. Consent of the child, the Chamber concluded, is not a valid defense to a charge of "conscription or enlistment," although the Decision is unclear whether the Chamber rejects this particular defense as to both conscription and enlistment or only one of them.
Second, in examining the phrase "using them to participate actively in hostilities," the Chamber distinguished this language of the Rome Statute from the much-debated phrase "take a direct part in hostilities" found in Art. 51(3) of Additional Protocol I. The Chamber concluded that the "participate actively" language of the Rome Statute is broader than the "take a direct part in hostilities" language of the Additional Protocol. The Chamber placed an outer limit on this "participate actively" standard, however, holding that any activity that is "manifestly without connection to the hostilities" would not fall within the prohibition. Examples of activities that the Chamber noted would fall outside the scope of Article 8(2)(e)(vii) include food delivery and "domestic help in an officer's married accommodation". By way of contrasting example, the Chamber concluded that guarding military objects or acting as a bodyguard would fall within the "participate actively" standard.
Third, the Chamber compared the language of Article 8(2)(b)(xxvi) with Article 8(2)(e)(vii), noting that Article 8(2)(b)(xxvi) (child conscription in international conflict) uses the language "into the national armed forces" whereas Article 8(2)(e)(vii) under which Lubanga was charged uses the language "into armed forces or groups". The Chamber concluded that interpreting the term "national" to mean "governmental" would contravene the object and purpose of the Rome Statute - i.e., ensuring "that the most serious crimes of concern to the international community as a whole must not go unpunished" - since it would permit a crime to go unpunished if carried out on behalf of a non-State army. It therefore concluded that the term "national armed forces" was not limited to the armed forces of a State. The Statute thus permits Lubanga to be prosecuted for conscripting or enlisting child soldiers into the FPLC (a non-governmental force) during both the non-international and international phases of the conflict.
The Chamber then examined the relationship between the conflict and the crimes committed. It found that there was sufficient evidence to establish substantial grounds to believe that the crimes alleged took place in the context of and were associated with the armed conflict in Ituri between July 2002 and December 2003.
The Chamber then turned to the defenses based on the principle of legality and mistake of law. Under the principle of legality codified in Article 22(1) of the Rome Statute, a person shall not be criminally responsible under the Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. The Defense argued that the principle of legality imposed upon the Chamber an obligation to verify whether Lubanga had been aware at the time of the alleged acts that those acts were criminal. Specifically, it first argued that Article 65 of the Fourth Geneva Convention was applicable, under which penal provisions enacted by an occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants, and that neither Uganda nor the DRC had made their ratification of the Rome Statute known to their inhabitants. The Defense further argued that, because the crime of conscription or enlistment of child soldiers is not codified in the Additional Protocol I or II to the Geneva Conventions or in the Convention on the Rights of the Child, the act is not of the sort that Lubanga could have foreseen would trigger international criminal responsibility.
The Chamber rejected the argument, concluding that when a norm had been approved by the States party to the Rome Statute, and clearly defined and codified in that Statute, there could be no violation of the principle of legality. It considered, moreover, that the defense was not in fact invoking a legality defense but rather a mistake of law defense under Article 32(1) of the Rome Statute, which states that a mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court may be a ground for excluding criminal responsibility only if it negates the mental state required by such a crime. The Chamber rejected this possibility as a misapplication of the mistake of law defense, noting that the Rome Statute Article 32(2) specifically cautions that "[a] mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility".
The Chamber concluded with an analysis of the applicable form of criminal responsibility. It first noted that the Prosecution charged Lubanga under a theory of direct responsibility under Article 25(3)(a) of the Rome Statute (which includes committing a crime individually, committing a crime jointly with another, and committing a crime by the intermediary of another). The Prosecution did not invoke other forms of criminal responsibility in Articles 25(3)(b)-(d) (such as command responsibility and aiding and abetting.). The Chamber concluded that if substantial grounds existed to believe that Lubanga was individually criminally responsible within the meaning of Article 25(3)(a), the other forms of responsibility need not be considered. Concerning the form of criminal responsibility among those implicated by Article 25(3)(a), the Chamber accepted the Prosecution's theory based on "control exercised jointly over the crime" ("controle exercé conjointement sur le crime"), noting that the Rome Statute rejected the "joint criminal enterprise" ("L'enterpise criminelle commune") approach of the ICTY.
Examining the objective elements of this joint control, the Chamber found that there was sufficient evidence to establish substantial grounds to believe that Lubanga was for the majority of the time, but not always, the person with the final word as to political decisions of the FPLC. The Chamber then found that there was sufficient evidence to establish substantial grounds to believe that, beginning in September 2002, there was an agreement or common plan between Lubanga and other high-ranking FPLC commanders to further the war effort by voluntarily or forcibly recruiting minors into the ranks of the FPLC, subjecting them to military training, causing them to participate actively in military operations, and using them as bodyguards. It found that although this common plan did not specifically target children under the age of fifteen, but rather was aimed at young recruits in general, in the normal course of events, its implementation would entail the objective risk that it would involve children under the age of fifteen. It further concluded that there were substantial grounds to believe that between September 2002 and the end of 2003, the FPLC did in fact recruit large numbers of children, including those under 15 years of age, sent them to military training camps, submitted them to strict military discipline, and provided them with arms, and concluded that this was a systematic practice known to the Hema population in Ituri. Finally, it found that there was sufficient evidence to establish substantial grounds to believe that Lubanga assumed an essential general coordinating role in the implementation of the common plan.
Examining the subjective elements of this joint control, the Chamber noted that there were substantial grounds to believe that Lubanga was aware of the recruitment of children under 15 years of age, was aware of the existence of an armed conflict in the region, was aware of the importance of the role he played in the carrying out of the plan to recruit children under the age of 15 into the armed forces of the FLPC, and was aware of his capacity to prevent the plan from being carried out.
The Chamber therefore confirmed that there were substantial grounds to believe that Lubanga was responsible, as co-perpetrator, for the conscription and enlistment of children under the age of 15 years into the FPLC from the beginning of September 2002 to June 2, 2003 under Articles 8(2)(b)(xxvi) and 25(3)(a); and from June 2, 2003 to August 13, 2003 under Articles 8(2)(e)(vii) and 25(3)(a).
The Defense has initiated two appeals, first under Rome Statute Art. 82(1)(b) and then under Rome Statute Art. 82(1)(d). The Prosecution has also requested leave to appeal, limited to contesting the Chamber's substitution of the crime charged by the Prosecution (Article 8(2)(e)(vii) (applicable in non-international armed conflict) with an additional one under Article 8(2)(b)(xxvii) (applicable in international armed conflict). The Court has not ruled on any of the appeals at the time of this writing. The Registry of the Court has now transmitted the case file to the President of the Court so that the President may constitute a three-judge Trial Chamber to try the case. If convicted, Lubanga could face up to life imprisonment.
Jason Morgan-Foster is a Research Scholar at New York University School of Law and Assistant to Philip Alston in his capacity as the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions. He has been an ASIL member since 2003.
 Le Procureur c. Thomas Lubanga Dyilo, Décision sur la confirmation des charges, Cour Pénale Internationale, Chambre Préliminaire I, Doc. No. ICC-01/04-01/06 (29 janvier 2007). (Translation into English by the author.)
 Prosecutor v. Sam Hinga Norma, Decision on Preliminary Motion Based on lack of jurisdiction (child recruitment), Special Court for Sierra Leone, Appeals Chamber, Case No. SCSL-2004-14-14-AR72(E) (31 May 2004).
 Prosecutor v. Thomas Lubanga Dyilo, Document Containing the Charges, International Criminal Court, Doc. No. ICC-01/04-01/06 (Aug. 28, 2006).
 Procureur c. Thomas Lubanga Dyilo, supra note 2, at paras. 62-166.
 Id. at paras. 202-204.
 Id. at paras. 200-247.
 For documentation of the controversies surrounding this phrase, see the report of the Third Expert Meeting on the Notion of Direct Participation in Hostilities (http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205/$File/Direct_participation_in_hostilities_2005_eng.pdf; International Committee of the Red Cross, "Direct Participation in Hostilities", http://www.icrc.org/Web/eng/siteeng0.nsf/html/participation-hostilities-ihl-311205 (last accessed Feb. 14, 2007).
 Procureur c. Thomas Lubanga Dyilo, supra note 2, at paras. 261-263.
 Id. at paras. 281-285.
 Id. at para. 293.
 Id. at paras. 294-316.
 Id. at paras. 318, 335-341.
 Id. at paras. 368-403.
 Id. at paras. 404-09.
 Defence Appeal against the Pre-Trial Chamber's "Décision sur la confirmation des charges" of 29 January 2007 (Jan. 30, 2007) (appeal taken under Rome Statute Art. 82(1)(b)), online at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-797_English.pdf (last accessed Feb. 14, 2007); Version publique expurgée de la requête de la Défense en authorization d'interjeter appel de la Décision de la Chambre Préliminaire I du 29 janvier 2007 sur la confirmation des charges, Annex, (appeal taken under Rome Statute Art. 82(1)(d)), online at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-836-Anx_English.pdf (last accessed Feb. 22, 2007).
 Application for Leave to Appeal Pre-Trial Chamber I's 29 January 2007 « Décision sur la confirmation des charges » (Feb. 5, 2007), online at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-806_English.pdf (last accessed Feb. 14, 2007). The Prosecution argued that "after an in-depth factual and legal analysis of all the available evidence, the Prosecution concluded that it could not establish before a Trial Chamber of this Court, in the context of proceedings aimed at establishing the individual criminal responsibility of a person, and not State responsibility, a sufficient nexus capable of supporting a finding beyond a reasonable doubt of the existence of an armed conflict of an international character. - [T]he Chamber is effectively forcing the Prosecution to, contrary to its professional assessment, include a specific crime in its charging instrument and prove it at trial." Id. at para. 9.
 Transmission à la Présidence de la décision sur la confirmation des charges et du dossier de la procedure (14 février 2007), online at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-822-Corr_French.pdf (last accessed February 14, 2007).
 Congo Warlord to Face Global Justice, New York Times, January 30, 2007.