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C. Confirmation of Charges

On February 10, 2006, PTC I issued a sealed warrant of arrest²⁸ against Thomas Lubanga on charges of war crimes, namely, enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. Lubanga was surrendered to the ICC on March 17, 2006 and the confirmation of charges hearing took place in November 2006. On January 29, 2007, PTC I confirmed the charges against Lubanga and ordered him to appear before a Trial Chamber for trial.²⁹ Several elements of the chamber’s first decision confirming charges against a suspect are noteworthy.

1. Clarification of the standard used to confirm charges

Article 61(7) of the Rome Statute provides that the Pre-Trial Chamber must, on the basis of the hearing, determine whether “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” The prosecution, the legal representatives of victims and the defense all presented different interpretations of “substantial grounds to believe” during the confirmation hearing.

In its decision, PTC I held that the prosecution has to bring concrete and tangible evidence in support of its charges at the confirmation hearing and demonstrate a clear direction in the reasoning supporting its specific allegations. PTC I further held that the criteria “substantial grounds to believe” must allow the judges to assess the evidence as a whole. After examining the evidence, the chamber will determine whether it is convinced that the prosecution’s allegations are solid enough to send a suspect to trial.³⁰

2. Definition of the notion of co-perpetration

The prosecution charged Lubanga as a co-perpetrator under Rome Statute article 25(3)(a).³¹ PTC I held that the notion of co-perpetration is linked to the notion of joint control of the crime. The court held that a finding of co-perpetration requires the following elements:³²

An existing agreement or common plan between two or more persons;

An essential and coordinated contribution from each co-perpetrator leading to the realization of the elements of the crime;

The person must satisfy the subjective elements of the crime (i.e. have intent and knowledge);

The person, as well as other co-perpetrators, must all, in a shared manner, know and accept that the implementation of their common plan may lead to the elements of the crime being committed;

The person must know the circumstances that allow him/her to exercise joint control of the crime.

3. Change in the legal characterization of the charge

The prosecution charged Lubanga with enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the context of an armed conflict not of an international character, a war crime punishable under article 8(2)(e)(vii) of the Rome Statute. According to the prosecution, the alleged acts occurred between July 1, 2002 and December 31, 2003.³³

PTC I however held that the armed conflict in Ituri was international from July 2002 to June 2, 2003, due to Uganda’s presence in Ituri as an occupying force. As a result, the chamber substituted the crime charged by the prosecution under article 8(2)(e)(vii) with a different one (enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the context of an international armed conflict) under article 8(2)(b)(xxvi) until June 2, 2003. PTC I found that because both articles criminalize the same behavior, it was not necessary to adjourn the hearing and to request the prosecutor to amend the charges.³⁴

The prosecution has since requested leave to appeal this aspect of the decision.³⁵ The prosecution argued that the Rome Statute “only allows the Chamber to adjourn the proceedings and request the Prosecution to consider amending a charge, if the Chamber is of the view that the evidence submitted appears to establish a different crime.” In addition, the prosecution points out that as a result of the substitution of the crime, it is forced to prosecute at trial a crime containing specific elements which it considers not to be supported by the evidence currently in its possession.³⁶

4. Reduction of the temporal scope of the charges

The prosecution charged Lubanga with crimes committed between July 1, 2002 and December 31, 2003.³⁷ However, PTC I confirmed the charges for a shorter time period starting early September 2002³⁸ and ending on August 13, 2003. PTC I found that Lubanga continued to exercise his power while under house arrest from August 13, 2003, but did not play a coordinating role in relation to the implementation of the common plan – one of the elements of the notion of co-perpetration – after this date.³⁹

5. The scope of the term “national armed forces”

The prosecution charged Lubanga under article 8(2)(e)(vii),⁴⁰ which addresses the conscription or enlistment of children under the age of fifteen years into armed forces or groups.

Article 8(2)(b)(xxvi), the crime substituted by PTC I, however, addresses the conscription or enlistment of children under the age of fifteen years into the national armed forces.

PTC I considered whether the term “national” armed forces restricted the scope of the article to government armed forces.⁴¹ The chamber relied on the Geneva Conventions as well as the jurisprudence of the International Criminal Tribunal for the former Yugoslavia. It also observed that interpreting the word “national” as meaning “governmental” would contravene the Rome Statute as the Court would not be able to prosecute an armed group party to a conflict; in Lubanga’s case, Lubanga would not be prosecuted because the armed conflict was of an international character. PTC I found that the scope of the words “national armed forces” in article 8(2)(b)(xxvi) is not restricted to government armed forces, and thus includes Lubanga’s armed group.