Prosecutor V. Thomas Lubanga Dyilo. Décision sur la confirmation des charges. Case No.

ICC-01/04-01/06.
Author(s): Mark A. Drumbl
Source: The American Journal of International Law , Oct., 2007, Vol. 101, No. 4 (Oct.,
2007), pp. 841-848
Published by: Cambridge University Press

Stable URL: https://www.jstor.org/stable/40006321

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Cambridge University Press is collaborating with JSTOR to digitize, preserve and extend access
to The American Journal of International Law

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
INTERNATIONAL DECISIONS

Edited by Daniel Bodansky

International criminal law - International Criminal Court - war crimes - recruitment and use of child
soldiers - confirmation of charges

PROSECUTOR V. THOMAS LUBANGA DYILO. Decision sur la confirmation des charges. Case No. ICC-
0 1 /04-0 1 106. At <http://www.icc-cpl.int/library/cases/ICC-0 1 -04-0 1 -06-803_French.pdf > .
International Criminal Court, Pre-trial Chamber I, January 29, 2007.

On January 29, 2007, in Prosecutor v. Lubanga Dyilo, Pre-trial Chamber I o

national Criminal Court (ICC) confirmed war crimes charges against Lubang
scripting, enlisting, and using children under the age of fifteen in a rebel force
command.1
Lubanga, a national of the Democratic Republic of Congo (DRC), was a founder of the
Union des patriotes congolais (UPC) and served as commander-in-chief of its armed military
wing, the Forces patriotiques pour la liberation du Congo (FPLC).2 The UPC is a rebel orga-
nization, established in 2000 and dominated by the Hema ethnic group, of which Lubanga is
a member. Since the 1 990s, armed conflict between governmental and rebel forces, and among
rebel forces inter se, has been pervasive throughout the DRC - in particular, its northeastern
Ituri region. In Ituri alone, there are approximately twenty ethnic groups, with two of the larger
ones being the Hema and the Lendu (para. 1). This armed conflict has transboundary dimen-
sions insofar as it involves a number of other African states (notably, Uganda and Rwanda), and
it also has connections to the multinational trade in Congolese minerals.3 Throughout the
DRC, an estimated three million people have been killed in this conflict or as a result of its
attendant diseases and deprivations.4 In addition to widespread killings, other atrocities - in-
cluding sexual violence, torture, and mutilation - have been commonplace.
On April 19, 2004, the DRC president referred to the ICC prosecutor the situation within
the DRC of crimes within the ICC's jurisdiction allegedly committed following the entry into

1 Prosecutor v. Lubanga Dyilo, Decision sur la confirmation des charges, Case No. ICC-0 1/04-0 1/06 (Int'l
Crim. Ct. Pre-trial Chamber I, Jan. 29, 2007), at <http://www.icc-cpl.int/library/cases/ICC-01-04-01-06-
803_F rench.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/Reconciliation 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/Particle =724>.
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 Al ("at least 4 million").

841

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
842 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 1 0 1

force of the Rome Statute, the ICC's constitutive instrument, on July 1, 2002. 5 Inves
began in June 2004. On February 10, 2006, Pre-trial Chamber I issued an arrest
against Lubanga. Detained, Lubanga made his first appearance before that chamber on
20, 2006.
Article 61 of the Rome Statute addresses confirmation of charges before trial. The
of confirming charges is one example, among others, of how investigatory magistra
dures, familiar to civil law systems, have influenced the ICC. According to Article 6
pretrial chamber "shall hold a hearing to confirm the charges on which the Prosecutor
to seek trial."6 In Lubanga's case, hearings pertaining to the confirmation of charges w
from November 9 to 28, 2006 (para. 30). Article 61 (7) states that the pretrial chamb
on the basis of the hearing, determine whether there is sufficient evidence to establis
tial grounds to believe that the person committed each of the crimes charged."7 In th
decision, the pretrial chamber observed that the prosecutor's burden of proof under
6 1 (7) requires bringing concrete and tangible proof, assessed as a whole, that establish
line of reasoning that underpins the specific allegations (para. 39). 8 The chamber no
deciding to admit certain pieces of evidence, that its decisions regarding admissibility
out prejudice to any final determination by a trial chamber on the admissibility and
value of evidence at trial (para. 90).
After effecting a detailed review,9 Pre-trial Chamber I confirmed three counts un
different enumerated war crimes. In particular, it charged Lubanga as a co-perpetra
teur) under Article 25 (3) (a)10 for (1) conscripting children under the age of fifteen
FPLC, (2) enlisting such children into the FPLC, and (3) using them to participate act
hostilities, in violation of Articles 8(2)(b)(xxvi) (applicable to international armed
and 8 (2) (e) (vii) (applicable to conflicts not of an international character) . The pretria
noted Lubanga's individual criminal responsibility under Article 8(2)(b)(xxvi) to h

5 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, available at <h
un.org/law/icc/ > [hereinafter Rome Statute]. For more information on the situation in the DRC,
www.icc-cpl.int/cases/RDC.html> .
See also Article 61 (5) of the Rome Statute, which provides: "At the hearing, the Prosecutor shall su
charge with sufficient evidence to establish substantial grounds to believe that the person committed
charged. The Prosecutor may rely on documentary or summary evidence and need not call the witne
to testify at the trial." For simplicity of expression in the case report, the embedded qualifications about t
(e.g., "sufficient evidence to establish substantial grounds to believe") will not be included in the prese
of the pretrial chamber's reasoning. It should be understood that the pretrial chamber is not making
minations 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
respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been
by the Prosecutor."
8 The chamber's language is as follows: "a apporter des elements de preuve concrets et tangibles, m
direction claire dans le raisonnement supportant ses allegations specifiques. De plus, le critere des 'mo
tiels de croire' doit permettre d'evaluer l'ensemble des elements de preuve admis aux fins de l'audienc
mation des charges, considered comme un tout."
9 The evidence considered by the chamber included declarations and testimony by individuals,
nations unies en Republique Democratique du Congo reports, UN reports, video footage of Lubanga
Rights Watch reports.
10 Article 25(3) of the Rome Statute provides: "In accordance with this Statute, a person shall b
responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
such a crime, whether as an individual, jointly with another or through another person, regardless of
other person is criminally responsible [.]"

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
2007] INTERNATIONAL DECISIONS 843

in September 2002 (date of the FPLC's found

(date when Uganda effectively withdrew fo
responsibility under Article 8(2)(e)(vii) to have
until August 13, 2003 (when DRC authoritie
junctive nature of the language, the actus
8(2)(b)(xxvi) and 8(2)(e)(vii) can be satisfied
"using."11
In confirming charges under two separate provisions of the Rome Statute, Pre-trial Cham-
ber I departed from the prosecutor's assessment (para. 9) that the Ituri conflict was, at all rel-
evant times, a conflict not of an international character. 12 The prosecutor had charged Lubanga
as a co-perpetrator under Article 8(2)(e)(vii) alone. The pretrial chamber ruled, however, that
from July 2002 to June 2, 2003, the conflict could be seen as an international armed conflict
involving Uganda (para. 220) and that from then until late December 2003, the conflict in
Ituri was a conflict not of an international character (paras. 235-36). The pretrial chamber
thereby sua sponte substituted charges of conscription, enlistment, and use of children under
the age of fifteen in international armed conflict for the time period up to June 2, 2003. Thus,
insofar as it preserved the charges of conscription, enlistment, and use of children under the
age of fifteen in noninternational armed conflict, the pretrial chamber de facto added new
charges to those that the prosecutor had initially presented in the Document Containing the
Charges (under Rome Statute Article 6l(3)(a)).13
In coming to its conclusion that the conflict was international in nature from July 2002 to
June 2, 2003, Pre-trial Chamber I carefully examined the involvement of Uganda and Rwanda.
Although it found evidence that Rwanda provided arms, advice, support, and soldiers to the
UPC (paras. 221-25), the chamber ruled that this evidence was insufficient for the purpose of
establishing that Rwanda directly or indirectly intervened in the armed conflict in Ituri (para.
226). The chamber also found sufficient evidence, however, to establish substantial grounds
for believing that Uganda was an occupying power in Ituri (para. 220). 14
Turning to the legal elements of child-soldiering crimes under Articles 8(2)(b)(xxvi) and
8(2)(e)(vii), Pre-trial Chamber I distinguished conscription from enlistment. Although the

11 See, in a different context, the AFRC Judgment, infra note 24, para. 733.
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 con-
clusion 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).
1 The chamber's understanding of Ugandan involvement in Ituri - and of how this involvement internation-
alized 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. 212-17) the pretrial chamber cited and relied upon the \Q]\ 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). 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).

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
844 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 1 0 1

chamber found that both conscription and enlistment are forms of recruitment, cons
is forcible recruitment (recrutement force) , whereas enlistment is voluntary recruitme
crutement volontaire) (para. 246). The chamber rejected the defense that the children h
sented (para. 247). The chamber also considered the scope of the Rome Statute's prohib
on using children to "participate actively in hostilities." It ruled that "participate activ
hostilities" was broader than antecedent language - namely, "take a direct part in host
which is found in Additional Protocol I to the Geneva Conventions (Article 77(2) an
mentaries thereto).15 The chamber interpreted the Rome Statute's "participate actively
tilities" language to cover activities such as combat, as well as related activities such as
naissance, spying, sabotage, courier services, being dispatched as a decoy, and guarding m
objects, quarters, or personnel (paras. 261- 63). 16 Moreover, since the chamber also he
the phrase "national armed forces" in Article 8(2)(b)(xxvi) is not limited to the armed
of a state (paras. 272-85), Lubanga's alleged conscription and enlistment of children int
FPLC could be prosecutable if undertaken in international armed conflict.17
Pre-trial Chamber I found that there was a sufficiently clear nexus between Lubanga's
criminal conduct and the armed conflict raging in Ituri as to implicate his responsibility
crimes (paras. 286-93). In part V of its decision, the pretrial chamber dismissed the claim
principle of legality precluded the charges against Lubanga, and it also dismissed a mistak
defense. In part VI, the chamber considered the prosecutor's analysis of criminal responsib
found sufficient grounds to accept the prosecutor's theory that Lubanga was directly respon
the alleged crimes as a co-perpetrator under Article 25 (3) (a). The chamber noted that co-p
tor responsibility based on joint control over a crime originates from the principle that two
people, acting in concert, could commit a crime through a division of essential tasks (para
Although no individual member of the group has overall control of the crime, all membe
dependently share control insofar as each individual member could frustrate the commission
crime if they failed to execute their individual tasks (id.).19
In sum, Pre-trial Chamber I held that there was sufficient evidence to support the charges
theory of Lubanga's individual criminal responsibility. On March 6, 2007, in accordanc
Rome Statute Article 67(1 1),20 the presidency constituted Trial Chamber I, which wil

15 Protocol Additional to the Geneva Conventions of 1 2 August 1 949 and Relating to the Protection o
of International Armed Conflicts (Protocol I), Art. 77(2), 1 125 UNTS 3 (1977) ("The Parties to the con
take all feasible measures in order that children who have not attained the age of fifteen years do not tak
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
conduct such as food delivery to an airbase or domestic help in married officers' quarters (para. 262) ("l
de denrees alimentaires a une base aerienne ou l'emploi de personnel domestique dans les quartiers reserve
ciers maries 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 no
tional 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 fondee sur le controle exerce conjointe
le crime a pour origine le principe de la division des taches essentielles en vue de la commission d'un cri
deux ou plusieures personnes agissant de maniere concertee."
u The chamber's language is as follows: "Ainsi, bien qu'aucune de ces personnes ne detiennent le
d'ensemble de l'infraction parce qu'elles dependent toutes les unes des autres pour sa commission, elles p
toutes le controle car chacune d'elles pourrait compromettre la commission du crime si elle n'executait pas
20 Article 67(1 1) of the Rome Statute provides: "Once the charges have been confirmed in accordance w
article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64,

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
2007] INTERNATIONAL DECISIONS 845

Lubanga21 and pronounce on his guilt or innocen

doubt.22 On June 5, 2007, Pre-trial Chamber I de
Lubanga case, and transferred the case file to Trial
* * * *

Few international proceedings have involved the conscription, enli

soldiers. In addition to Lubanga, two proceedings have come to judgm
for Sierra Leone (SCSL). Insofar as Lubanga only involves child-soldie
from those two other proceedings.
On June 20, 2007, in the Armed Forces Revolutionary Council
Chamber II convicted Alex Tamba Brima, Ibrahim Bazzy Kamara,
for numerous crimes, which included conscripting or enlisting childre
into armed forces or groups, or using them to participate actively in
first conviction by an international tribunal on crimes relating to c
sentencing hearing, Brima, Kamara, and Kanu were sentenced to pri
five, and fifty years, respectively.25 When the trial chamber determi
of the child-soldiering crimes, it was guided by the Rome Statute26
of using children to participate actively in hostilities, by the work of
mittee.27 Moreover, the trial chamber explicitly referenced the dec
I in Lubanga. In its judgment in AFRC, SCSL Trial Chamber II define
ing "compulsion" and as encompassing "acts of coercion, such
recruitment," and relied on Lubanga to substantiate the illustrative in
ment.28 The SCSL trial chamber defined enlistment as "accepting an

4, shall be responsible for the conduct of subsequent proceedings and may exercis
Chamber that is relevant and capable of application in those proceedings."
21 The judges are Elizabeth Odio Benito, Rene Blattmann, and Adrian Fulford
Rome Statute, supra note 5, Art. 66(3).
For a roadmap of Trial Chamber I's preparatory hearings in the Lubang
Prochaines audiences en vue de la preparation du proces de Thomas Lubanga Dy
www. icc-cpi . int/press/pressreleases/264 .html > .
Prosecutor v. Brima (AFRC), Case No. SCSL-2004-16-T, Judgment (Spec. Ct.
II, June 20, 2007), ^<http://www.sc-sl.org/AFRC.html> [hereinafter AFRC Jud
Statute, at <http://www.sc-sl.org/scsl-statute.html>, codifies child-soldiering c
have the power to prosecute persons who committed the following serious violatio
law: . . . (c) Conscripting or enlisting children under the age of 1 5 years into arme
to participate actively in hostilities." This issue of t\\e Journal includes a case report
Marlowe on AFRC and the CDF case (see infra notes 30-32 and accompanying
25 Prosecution v. Brima (AFRC), Case No. SCSL-2004-16-T, Sentencing (Spec.
ber II, July 19, 2007), at <http://www.sc-sl.org/Documents/AFRC_l 9JUL07_
AFRC Judgment, supra note 24, para. 729.
Id., para. 736. Regarding the crime of the use of children to participate actively in
II, id., para. 737, took an approach similar to that of Pre-trial Chamber I in Lubanga. T

the use of children to participate actively in hostilities is not limited to participat

requires logistical support to maintain its operations. Any labor or support that
tain, operations in a conflict constitutes active participation. Hence, carrying
finding and/or acquiring food, ammunition, or equipment, acting as decoys, ca
or finding routes, manning checkpoints or acting as human shields are some ex
as much as actual fighting and combat.

28 Id., para. 734.

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
846 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 1 0 1

and, citing Lubanga, held that enlistment "is a voluntary act, and the child's consent is
not a valid defence."29
Conscription, enlistment, or use of child soldiers also arose in the trial of Chief Sam H
man (who died in February 2007, following conclusion of hearings before SCSL Trial
I), Moinina Fofana, and Allieu Kondewa in the Civil Defence Forces (CDF) trial. In
decision on a preliminary motion brought by Norman, the SCSL appeals chamber ruled
crime of recruiting child soldiers in either international or noninternational armed conflict
tallized as customary international law prior to November 1996.30 In Lubanga, Pre-tria
I referred back to this 2004 judgment. On August 2, 2007, SCSL Trial Chamber I convic
Fofana and Kondewa on four counts of war crimes.31 In addition, Kondewa was conv
count of enlisting a child combatant under the age of fifteen (Fofana was found not gu
count of enlisting or using child soldiers) ,32 The trial chamber did not rely on Lubanga in i
though did briefly reference the ICC Preparatory Committee work.
Lubanga is important in that it offers an early interpretation of key aspects of the
child-soldiering generally. This early interpretation will be of service to ICC Trial C
I, as it has already proven to be in some of the SCSL's trial work (as in AFRC). Moreo
far as crimes relating to child soldiers were not included in the Statute of the Inter
Criminal Tribunal for the Former Yugoslavia (ICTY) or Rwanda (ICTR),33 the
ICC synergistically have forged ahead to proscribe these crimes.
With the international community as an audience, Lubanga also fulfills an important
role in denouncing the conscription, enlistment, and use of child soldiers, thereby enha
reach and normative value of international criminal law. The Lubanga proceedings, as w
SCSL judgments, serve important didactic and pedagogical goals of teaching the interna
munity about the tragedy of child soldiers. In terms of connecting to audiences in the
regions of the DRC, the Lubanga proceedings have been enriched by the actions of num
tims - who have sought (and in some cases obtained) status to participate. That said, on
ground account from eastern DRC suggests some disconnect between the Lubanga pr
and local expectations that justice be served. In a winter 2007 article in Dissent, Phil Clar
that the focus of the charges against Lubanga on child soldiers, while "highlight [ing] th
the thousands of child soldiers in Congo," has led "many Congolese [to be] angry that t
not charged Lubanga with more serious crimes, including the mass murder, rape, mutil
torture for which the UPC is notorious."34 Clark also noted that since the ICC has n
extended its legal work beyond Ituri[,] [vjictims of mass violence in other provinces

29 Id., para. 735.

30 Prosecutor v. Norman, Case No. SCSL-2004-l4-AR72(E), Decision on Preliminary Motion Base
of Jurisdiction (Child Recruitment) (Spec. Ct. Sierra Leone, Appeals Chamber, May 31, 2004), at <h
sc-sl.org/Documents/SCSL-04-l4-AR72(E)-131-7383.pdf>.
31 Prosecutor v. Fofana {CDF), Case No. SCSL-04-14-T, Judgment (Spec. Ct. Sierra Leone, Trial
August 2, 2007), at <http://www.sc-sl.org/CDF.html>. Judge Thompson, dissenting, would have ac
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 1 5 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.

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
2007] INTERNATIONAL DECISIONS 847

North and South Kivu and Katanga, wonder if jus

bunals must remain vigilant about how they con
in afflicted regions.36 Moreover, the operation
from the security situation in areas over which th
ern DRC, appears to be deteriorating.37 Sexual v
in the region.38
The Lubanga confirmation-of-charges decisio
between the ICC prosecutor, on the one hand,
leave to appeal the decision because of his conc
burden of proof for establishing Lubanga's
prove, based on the evidence in his possession
nature of the conflict, as required for the cha
defense also sought leave to appeal a number of
In its decision of May 24, 2007 (Leave to Ap
applications for leave to appeal.40 The chamber
intentionally excluded decisions confirming
appeals chamber (Leave to Appeal Decision, par
decision is the kind of interlocutory decision fo
granted. The pretrial chamber refused to gran
vision - namely, Rome Statute Article 82(1 )
general principles of criminal law, as permitti
"in exceptional circumstances and to avoid irre
28). The chamber noted that appeal of decision
the start of the trial" and could bear upon the
trial" (id., paras. 29-30). In the chamber's opini
in Lubanga did not rise to the level of excepti
paras. 43-45) . That said, the pretrial chamber a
ecution or Defence from requesting that the T
tion of the facts described in the charges agai
the [Pre-trial] Chamber" (id., para. 44).
A pretrial chamber's decision to confirm cha
cutor - and, in fact, resisted by him - puts the
Insofar as Article 61 (7) of the Rome Statute d

35 Id.

36 fe£^mz//y, Mark A. Drumbl, Atrocity, Punishment, and International Law 63, 123-47, 187-
94, 201 (2007).
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 Al.
39 Jason Morgan-Foster, ICC Confirms Charges Against DRC Militia Leader, ASIL INSIGHT, n. 1 6 (Mar. 9, 2007)
(citing prosecutor's leave to appeal application).
Prosecutor v. Lubanga Dyilo, Case No. ICC-0 1/04-0 1/06, Decision on the Prosecution and Defence Appli-
cations for Leave to Appeal the Decision on the Confirmation of Charges (Int'lCrim. Ct., Pre-trial Chamber I, May
24, 2007), ^ <http://www.icc-cpl.int/library/cases/ICC-0 1-04-0 1-06-91 5_English.pdf >. In addition to thesub-
stitution 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-cpl.int/library/ cases/ICC-0 1 -04-0 1 -06-926_English.pdf > .

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms
848 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 1 0 1

to substitute its own charges for those of the prosecutor, this result was not self-evid
intended.41 That said, when taken as a whole, the Rome Statute and the Rules of Proce
and Evidence do constrain prosecutorial autonomy in various significant ways. Th
straints reflect the influence of inquisitorial criminal procedure, which plays a greate
the ICC than in other international criminal tribunals, such as the ICTR, ICTY, o
each of which tends more toward archetypical common law adversarialism. To
ICTY, ICTR, and SCSL judges have at times played inquisitorial roles. For examp
questioning of witnesses from the bench by ICTR Trial Chamber Judge Pillay i
together with amicus involvement, coaxed the prosecution to amend the indictment ag
Jean-Paul Akayesu to include charges of sexual violence.42 In any event, the pretrial c
in Lubanga substituted charges for only part of the time period covered in the Documen
taining the Charges. Consequently, Lubanga still will face trial on the original cha
conscription, enlistment, and use of child soldiers in an armed conflict not of an inter
character.

Mark A. Drumbl

Washington and Lee University School of Law

Special Court for Sierra Leone - international criminal law - crimes against humanity - war crimes - re-
cruitment and use of child soldiers

Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara & Santigie Borbor Kanu. Case No.
SCSL-04-16-T. At <http://www.sc-sl.org/AFRC.html>.
Special Court for Sierra Leone, Trial Chamber II, June 20, 2007.

Prosecutor v. Moinina Fofana & Allieu Kondewa. Case No. SCSL-04-14-T. At <http://
www.sc-sl.org/CDF.html> .
Special Court for Sierra Leone, Trial Chamber I, August 2, 2007.

In June and August 2007, the Special Court for Sierra Leone released its first two judg-
ments in what have popularly been referred to as the Armed Forces Revolutionary Council

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,
mit 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 insuffic
dence;

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

(i) Providing further evidence or 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 purpose 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 Decision, 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).

This content downloaded from

14.139.208.19 on Wed, 06 Mar 2024 14:50:21 +00:00
All use subject to https://about.jstor.org/terms