## Facts

- The case concerned a non-international armed conflict in Ituri, Democratic Republic of the Congo, from September 2002 to 13 August 2003 involving the UPC/FPLC and opposing forces.
- Thomas Lubanga Dyilo was the President of the UPC and commander-in-chief of its armed wing, the FPLC.
- The Democratic Republic of the Congo, a Rome Statute State Party, referred the situation to the ICC Prosecutor in March 2004.
- Lubanga was arrested pursuant to an ICC warrant issued in February 2006, transferred to The Hague in March 2006, and tried before ICC Trial Chamber I.
- Pre-Trial Chamber I confirmed charges that Lubanga, as a co-perpetrator, was responsible for (1) conscripting, (2) enlisting, and (3) using children under 15 to participate actively in hostilities.
- The trial was stayed twice due to disputes concerning prosecution disclosure and the use of intermediaries; proceedings later resumed.
- Evidence described widespread recruitment of children, through both coercive and ostensibly voluntary means, followed by training, arming, and deployment in operations where children were exposed to combat risks and sometimes fought and died.
- Because formal birth documentation was often unavailable, age was established through multiple sources including witness accounts, family testimony, school or baptismal records where available, and visual assessment from photographs and video.

## Issues

1. Whether the hostilities in Ituri during the charged period constituted a non-international armed conflict for purposes of article 8(2)(e)(vii) and article 8(2)(f) of the Rome Statute.
2. How to distinguish “conscripting” from “enlisting” children under 15, including whether a child’s apparent voluntariness negates criminal responsibility.
3. What conduct qualifies as “using” children to “participate actively in hostilities,” including non-combat roles that expose children to danger.
4. What evidentiary methods can prove beyond reasonable doubt that recruited persons were under 15.
5. What must be shown to establish co-perpetration under article 25(3)(a), including the accused’s contribution, intent, and control over the crimes.
6. How fair-trial guarantees affected admissibility and weight of evidence given disclosure failures and allegations of intermediary-related fabrication.

## Decision

- Trial Chamber I found Lubanga guilty of war crimes under article 8(2)(e)(vii) for conscripting and enlisting children under 15 into the FPLC and using them to participate actively in hostilities.
- The Chamber characterized the relevant armed conflict as not of an international character and found it existed from 1 September 2002 to 13 August 2003.
- The Chamber held the prosecution proved beyond reasonable doubt that Lubanga was responsible as a co-perpetrator under article 25(3)(a).
- The Chamber determined that recruitment could be criminal even where children appeared to join “voluntarily.”
- The Chamber accepted that “active participation” includes roles beyond direct fighting when the role exposes children to real danger from military operations.
- The Chamber applied heightened scrutiny to evidence connected to intermediaries and disclosure disputes and assessed credibility and corroboration before relying on such evidence.

## Legal Principles

- A non-international armed conflict under article 8(2)(f) requires protracted armed violence involving organized armed groups and does not require territorial control or responsible command as additional elements.
- “Conscription” refers to forced recruitment of children under 15; “enlistment” encompasses recruitment that may appear voluntary, and a child’s purported consent does not negate the offense.
- “Using” children to participate actively in hostilities is interpreted broadly to include combat and non-combat functions (e.g., guarding, patrolling, serving as bodyguards) when the function exposes children to the hazards of hostilities.
- Proof of age may be established beyond reasonable doubt through converging evidence, including testimony, family and community accounts, available records, and visual evidence, without requiring formal birth documentation.
- Co-perpetration under article 25(3)(a) requires an essential contribution to a common plan and a form of control over the commission of the crimes, exceeding accessory-level contribution.
- Fair-trial safeguards require effective disclosure and careful evaluation of witness reliability, particularly where intermediaries are used and fabrication is alleged; compromised evidence may be discounted or excluded.

## Conclusion

The ICC convicted Thomas Lubanga Dyilo for the war crimes of conscripting and enlisting children under 15 and using them to participate actively in hostilities in Ituri, holding that both forced and ostensibly voluntary recruitment can satisfy the offenses, that “active participation” covers dangerous support roles as well as combat, and that co-perpetration may be established where a leader makes an essential contribution to a common plan to build and deploy an armed force that incorporates child soldiers.


Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06 (Int’l Crim. Ct. Trial Chamber I Mar. 14, 2012)