## Facts

- Armed violence in Ituri, Democratic Republic of the Congo, arose amid disputes over land and natural resources and the formation of armed groups.
- Thomas Lubanga Dyilo, a Congolese national, was alleged to be a founding member and President of the Union des Patriotes Congolais (UPC) and a political leader linked to its armed wing, the Forces Patriotiques pour la Libération du Congo (FPLC).
- The DRC referred the situation on its territory to the International Criminal Court (ICC) Prosecutor under Rome Statute Article 14.
- The ICC issued a warrant for Lubanga’s arrest in February 2006; he was transferred to The Hague in March 2006.
- Pre-Trial Chamber I held a confirmation of charges hearing in November 2006 to determine whether there was sufficient evidence to commit Lubanga to trial.
- The Chamber found substantial grounds to believe that, from at least early September 2002 to about August 2003, the FPLC recruited children under 15 in multiple locations in Ituri, including by force and through recruitment drives.
- The Chamber found substantial grounds to believe that recruited children were trained, instructed in firearms, given weapons, and deployed, including in roles such as bodyguards that exposed them to danger from hostilities.
- The Prosecutor charged Lubanga with war crimes of enlisting, conscripting, and using children under 15 to participate actively in hostilities, framed in two time periods tied to the armed-conflict classification (international, then non-international), and alleged responsibility as a co-perpetrator under Rome Statute Article 25(3)(a).

## Issues

1. What evidentiary threshold governs confirmation of charges under Rome Statute Article 61(7) (“substantial grounds to believe”), and how it differs from arrest and trial standards.
2. How the Chamber should assess admissibility and probative value of the Prosecution’s materials, including redactions and disclosure limitations, while protecting defence rights.
3. Whether the hostilities in Ituri were an international armed conflict until 2 June 2003 and a non-international armed conflict from 2 June to 13 August 2003, determining the applicable war-crimes provisions.
4. How to interpret “conscripting,” “enlisting,” and “using [children] to participate actively in hostilities” under Rome Statute Articles 8(2)(b)(xxvi) and 8(2)(e)(vii).
5. Whether the evidence supported Lubanga’s alleged mode of liability as a co-perpetrator under Article 25(3)(a), including a common plan, essential contribution, and the required mental element.

## Decision

- The Chamber confirmed the charges and committed Lubanga to trial.
- It found sufficient evidence to establish substantial grounds to believe that Lubanga, as a co-perpetrator, committed the war crime of enlisting, conscripting, and using children under 15 to participate actively in hostilities:
  - In an international armed conflict from early September 2002 to 2 June 2003 (Articles 8(2)(b)(xxvi) and 25(3)(a)).
  - In a non-international armed conflict from 2 June 2003 to 13 August 2003 (Articles 8(2)(e)(vii) and 25(3)(a)).
- The Chamber held that the confirmation stage does not determine guilt; it tests whether the evidentiary record reaches the Article 61(7) threshold.

## Legal Principles

- At confirmation, the Prosecution must present sufficient evidence to establish “substantial grounds to believe” the accused committed the charged crimes; this standard is higher than the arrest threshold and lower than proof beyond a reasonable doubt.
- Armed-conflict classification is legally consequential at confirmation because it determines which Rome Statute war-crimes provisions apply to the alleged conduct.
- “Conscripting” means compulsory recruitment of children under 15; “enlisting” covers voluntary recruitment, including where children’s apparent consent is constrained by the conditions of armed conflict.
- “Using [children] to participate actively in hostilities” extends beyond direct combat to roles that expose children to real danger from hostilities, including close-support functions such as bodyguarding.
- Co-perpetration under Article 25(3)(a) may be established through a theory of control over the crime, requiring a common plan, an essential contribution by the accused, and intent and knowledge that the plan’s implementation will result in the commission of the crimes.

## Conclusion

Pre-Trial Chamber I confirmed child-soldier war-crime charges against Lubanga, holding that the evidentiary record met the “substantial grounds to believe” standard for co-perpetration and that the alleged recruitment and operational use of children under 15 fell within the Rome Statute prohibitions in both international and non-international armed-conflict contexts, warranting commitment to trial.


Prosecutor v. Lubanga, ICC-01/04-01/06 (ICC Pre-Trial Chamber I Jan. 29, 2007)