## Facts

- Thomas Lubanga Dyilo led the Union des Patriotes Congolais (UPC) and served as commander-in-chief of its armed wing, the Forces patriotiques pour la libération du Congo (FPLC), operating in Ituri, Democratic Republic of the Congo.
- The prosecution alleged that, between September 1, 2002 and August 13, 2003, Lubanga was responsible for the war crimes of enlisting and conscripting children under 15 into the FPLC and using them to participate actively in hostilities, under Rome Statute article 8(2)(e)(vii).
- Trial proceedings were extensive and involved numerous witnesses, evidence items, and victim participation.
- In March 2012, Trial Chamber I convicted Lubanga as a co-perpetrator; in July 2012, it imposed a 14-year sentence.
- Lubanga appealed his conviction to the ICC Appeals Chamber, raising objections to the charges, the legal characterization of the crimes, the mode of liability, evidentiary assessment, and alleged procedural unfairness.

## Issues

1. Whether the charging materials gave sufficiently detailed notice of the nature, cause, and content of the charges, particularly where responsibility was alleged through a common plan rather than direct commission.
2. Whether the Trial Chamber correctly interpreted and applied the war-crime elements of enlistment, conscription, and “use to participate actively in hostilities” of children under 15.
3. Whether the Trial Chamber correctly applied article 25(3)(a) co-perpetration (including “indirect co-perpetration”), including common plan, essential contribution, and mental element.
4. Whether the Trial Chamber committed reversible errors in evaluating evidence and applying the standard of proof.
5. Whether alleged procedural errors and fair-trial violations, individually or cumulatively, undermined the reliability of the conviction.

## Decision

- The Appeals Chamber dismissed Lubanga’s appeal and affirmed the conviction.
- It held that the accused’s right to be informed promptly and in detail was satisfied, notwithstanding alleged drafting imperfections, because the charging and pre-trial materials adequately described the common plan, Lubanga’s contribution, the mental element, and the temporal and geographic scope of the crimes.
- It upheld the Trial Chamber’s approach to the relationship among enlistment, conscription, and use of children to participate actively in hostilities, including protection-oriented interpretation of “active participation.”
- It affirmed the Trial Chamber’s application of co-perpetration under article 25(3)(a), including the “common plan” and “essential contribution” requirements.
- Applying the appellate standard of review, it found no material error of law, procedure, or unreasonable factual findings that warranted reversal, including on credibility and evidentiary challenges.

## Legal Principles

- For effective defense preparation, charges based on a common plan must provide detailed notice of: (i) the accused’s alleged conduct giving rise to responsibility (including the contours and implementation of the common plan and the accused’s contribution), (ii) the related mental element, and (iii) the identities of alleged co-perpetrators.
- With respect to underlying acts and victims, the prosecution must provide dates and locations of alleged acts and identify victims with the greatest specificity feasible in the circumstances.
- “Conscription” implies compulsory incorporation of children into armed forces or groups; “enlistment” may include voluntary joining; both concern incorporation of children under 15.
- “Use to participate actively in hostilities” is not limited to direct combat and can include roles sufficiently connected to hostilities, consistent with the protective purpose of the child-soldier prohibition.
- On appeal, factual findings are not displaced absent a showing that no reasonable trier of fact could have reached them, or that material legal/procedural error affected the reliability of the decision.

## Conclusion

The ICC Appeals Chamber affirmed Lubanga’s conviction for enlisting, conscripting, and using children under 15 in hostilities, holding that the charging and pre-trial materials gave adequate notice for a common-plan prosecution, endorsing key interpretations of the child-soldier war crimes, and finding no reversible evidentiary or procedural error.


Prosecutor v. Lubanga Dyilo, No. ICC-01/04-01/06 A 5 (Int’l Crim. Ct. App. Dec. 1, 2014)