GROTIUS CENTRE WORKING PAPER SERIES

GROTIUS CENTRE
WORKING PAPER
2013/004-ICL

A Shifting Scale of Power: Who is in Charge

of the Charges at the International Criminal
Court and the Uses of Regulation 55
Dov Jacobs

Leiden University. The university to discover.

Electronic copy available at: http://ssrn.com/abstract=1971821
A Shifting Scale of Power: who is in Charge of the Charges at the International Criminal Court and the

uses of Regulation 55

Dov Jacobs

One issue that has come to the fore in the early practice of the International Criminal Court (ICC) is

the question of who determines the content of the charges against an accused individual and the scope

and timing of any amendments that are to be made. The importance of this issue is threefold. First,

having a clear framework for the amendment of charges is important from the point of view of the
1
accused. If he or she is to have adequate time for the preparation of the defence, it is important that

there be some certainty as to the charges resting against him or her, without running the risk of

multiple amendments. Second, the issues are illustrative of the more general concern in the ICC

Statute to achieve a balance between legal certainty and judicial efficiency. The former requires that as

few amendments as possible be allowed the more advanced the proceedings are, whereas the latter

opens to door to some flexibility to avoid acquittals based on a faulty determination of the charges.

Third, as will be illustrated in the course of the chapter, it more generally highlights the difficult

balance of power to be struck between various organs of the Court, not just between the Prosecutor

and the Chambers, but also between the Pre-Trial Chamber and the Appeals Chamber, and begs the

question as to whether the judges of the ICC ought to have the final say in matters that might seem to

relate more to a legislative rather than judicial function.

This chapter will address these questions in three sections. Section I considers the pre-trial

proceedings, where control over the charges essentially rests on the Prosecutor, with the final decision

1
Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998, entered into force 1 July 2002 (‘ICC

Statute’), art 67(1)(b).

Electronic copy available at: http://ssrn.com/abstract=1971821

as to their confirmation given to the Pre-Trial Chamber. Section II examines the trial phase. In that

phase, the Statute is silent on any possible amendments to the charges, but the Trial Chamber is

granted the power under the Regulations of the Court to legally re-characterise the facts described in

the charges, thus raising the question of the legality and opportunity of such a procedure. Finally,

Section III looks at the framework relating to charges as a whole, and addresses some difficulties in its

operation, its interaction with other provisions of the Statute, such as ne bis in idem and

complementarity, and with the balance of power within the Court.

I. Amending the Charges at the Pre-Trial Phase

A. The Meaning of a ‘Charge’

As is widely known, pre-trial decisions relating to investigations and prosecutions are largely left to

the Prosecutor, who will decide whether to open an investigation based on information received,
2
irrespective of whether the situation has been referred to him by a State Party, by the United Nations
3 4
Security Council, or whether he is exercising his proprio motu powers, even if some of these initial
5
decisions will be subject to judicial control. In the same way, it is the Prosecutor’s decision whether
6
or not to proceed with a prosecution in a given situation.

In relation to the charges, it is equally left to the Prosecutor to initially determine their content.

It is interesting to note in this respect that the ICC Statute itself does not use the ‘indictment’
7
terminology, as is the case in other international tribunals, but rather refers to a ‘document containing

2
Ibid art 12(a).
3
Ibid art 12(b).
4
Ibid art 12(c).
5
For example, the decision to open an investigation proprio motu requires authorisation by the Pre-Trial Chamber (ibid art

15) and the decision not to open an investigation in the ‘interests of justice’ (ibid art 53(1)(c)) needs to be confirmed by the

Pre-Trial Chamber (ibid art 53(3)(b)).

6
Subject to the same possibility for the Pre-Trial Chamber to review the decision (ibid art 53(3)(b)).
7
See for example, ibid arts 18 and 19; STL Statute, art 18.

Electronic copy available at: http://ssrn.com/abstract=1971821

 8
the charges’. However, this document does not seem to be given any real formal legal value, as

evidenced by the fact that any discussions of amendments in the Statute concern ‘the charges’, rather

than ‘the document containing the charges’, compared to other tribunals which consider changes to the
9
indictment, as a formal document. This means that in order to discuss questions of ‘amendments to
10
the charges’ it is logically necessary to identify what exactly a ‘charge’ is.

Surprisingly, given the importance of such a notion in the proceedings, neither the Statute of the

ICC nor its Rules of Procedure and Evidence offers such a definition. However, the content of the

document containing the charges is specified in the Regulations of the Court which provides that the

full name of the person charged and any other relevant identifying information, a statement of the facts

‘which provides a sufficient legal and factual basis to bring the person or persons to trial’ and a legal
11
characterisation of the facts as well as the precise form of participation alleged should be included.

This Regulation is in line with the definition of an indictment in the ICTY Rules which provide

that ‘the indictment shall set forth the name and particulars of the suspect and a concise statement of
12
the facts of the case and of the crime with which the suspect is charged’. This is not necessarily a

definition of a charge itself. One interpretation posits that a charge is composed of two elements, a

factual description of the crimes and a legal characterisation of the facts. Under this interpretation,

the legal characterisation covers both the definition of the crimes and the form of participation. It

would therefore follow that any change to any of these elements, be it to the facts, legal

8
ICC Statute, art 61(3)(a). The consequences of this change have not fully been explored. It might be that it makes no

difference. It could, however, have consequences later on in the procedure in relation to rules of notification and possible

amendment of the charges, as well as on the possibility for the ICC to ‘import’ rules elaborated at other tribunals on the

‘curing’ of the indictment.

9
Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, UN Doc IT/32/Rev46

(20 October 2011) (‘ICTY RPE’), Rule 50.

10
This will be particularly relevant for the discussion of ICC Regulation 55, which allows the Trial Chamber to change the

legal characterisation of the facts; see Section II below.

11
International Criminal Court, Regulations of the Court, ICC-BD/01-01-04 (26 May 2004) (‘ICC Regulations’), Regulation

52.
12
ICTY RPE, Rule 47(C).
characterisation of the crimes, or the form of participation, would qualify as an amendment to the

charges.

A second interpretation could be that not all the elements mentioned are actually part of the

charge stricto sensu, which would mean that a change to one element would not necessarily imply an

amendment to the charge itself. In practice, as will be seen, the ICC apparently prefers the first

interpretation; decisions on the confirmation of the charges confirm both the factual elements
13
underlying the crime, and the legal characterisation of those facts. This interpretation has also been
14
favoured by the UN Human Rights Committee.

B. Amendment of the Charges

Prior to the confirmation of charges, ‘the Prosecutor may continue the investigation and may amend or
15
withdraw the charges’. Reasonable notice must be given to the person who is the object of the

charges in case of amendment or withdrawal. Moreover, any withdrawal must be notified to the Pre-
16
Trial Chamber, with reasons given. The confirmation of charges hearing must provide the Pre-Trial

Chamber with ‘sufficient evidence to establish substantial grounds to believe that the person
17
committed each of the crimes charged’. The Pre-Trial Chamber is given a series of options in this
18
regard. It shall confirm the charges for which there is sufficient evidence, decline to confirm charges
19
for which there is insufficient evidence, or it can adjourn the hearing in order to request from the
20
Prosecutor that he either provide further evidence in relation to a particular charge or amend a charge

if the ‘evidence submitted appears to establish a different crime within the jurisdiction of the

13
See for example Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Decision on the Confirmation

of Charges) ICC-01/04-01/06 (29 January 2007).

14
WA Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP, Oxford 2010) 802–803.
15
ICC Statute, art 61(4).
16
Ibid.
17
Ibid art 61(7).
18
Ibid art 61(7)(a).
19
Ibid art 61(7)(b).
20
Ibid art 61(7)(c)(i).
 21
Court’. After the confirmation hearing, ‘the Prosecutor may, with the permission of the Pre-Trial
22
Chamber and after notice of the accused, amend the charges’. If the purpose of the change is to add
23 24
more charges, or substitute more serious ones, a new confirmation hearing must be held.

This procedure has several notable features. First of all, the distribution of tasks between the

Prosecutor and the Pre-Trial Chamber is clearly defined, with the Prosecutor being the primary organ

responsible for determining the content of the charges and their amendment, whereas the Pre-Trial

Chamber exercises control over the procedure, without having itself any powers in relation to the

actual content of the charges. More particularly, should the evidence indicate that another crime than

the one charged be more appropriate, the Pre-Trial Chamber can invite the Prosecutor to amend the

charges, but it cannot do so proprio motu. There is a shifting balance between the Prosecutor’s

discretion and the authority of the Pre-Trial Chamber, whereby the Prosecutor’s discretion in relation

to the content of the charges diminishes the closer the procedure moves towards the actual trial.

Finally, the procedure takes into account the rights of the defence. Not only must the person be

provided within a reasonable time before the hearing with a copy of the document containing the

21
Ibid art 61(7)(c)(ii).
22
Ibid art 61(9). International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3 (Part.II-A), 9 September 2002

(‘ICC RPE’), Rule 128 further provides that it is the Chamber’s function to notify the accused following a written request by

the Prosecutor. Moreover, the determination of whether a new confirmation hearing is necessary is the duty of the Chamber.
23
The concept of ‘more serious charges’ could be problematic given the fact that the ICC Statute does not provide for a

hierarchy of crimes within the jurisdiction of the Court, all of them being considered as ‘the most serious crimes of

international concern’ (ICC Statute, art 1). This is also evidenced in the absence of differentiated sentences for specific

crimes (ICC Statute, art 77). This discussion finds an echo in the difficulty of applying the gravity threshold for admissibility

under ICC Statute, art 17(1)(d) of the Statute. On this see WA Schabas, ‘Prosecutorial Discretion and Gravity’ in C Stahn and

G Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff, Leiden 2009) 229–246 and D

Jacobs, ‘Commentary on Arrest Warrants and Admissibility’ in G Sluiter and A Klip (eds) Annotated Cases in International

Criminal Law: Volume 23 (Intersentia, Antwerp 2010) 118.

24
ICC Statute, art 61(9).
 25
charges and be informed of the Prosecutor’s evidence, but any subsequent changes to the charges
26
must be notified, both before the confirmation hearing and after.

C. Case-Law in Relation to the Powers of the Pre-Trial Chamber

The confirmation of charges decisions in the Lubanga and Bemba cases provide some additional

information on the scope of the role of the Pre-Trial Chamber in relation to the reclassification of

charges. The question of the requalification of the facts came up in the first confirmation of charges at
27
the ICC in the Lubanga case. More particularly, the issue arose in relation to the nature of the armed

conflict in Ituri.
28
The Prosecutor had initially charged Lubanga with three counts of war crimes under Article

8(2)(e)(vii), which relates to the crime of ‘conscripting or enlisting children under the age of fifteen

years into armed forces or groups or using them to participate actively in hostilities’ as a serious
29
violation of the ‘laws and customs applicable in armed conflicts not of an international character’.

This latter allegation on the nature of the armed conflict was laconically made at the very beginning of
30
the document containing the charges, without any particular supporting argumentation in the rest of

the Prosecutor’s reasoning.

25
Ibid art 61(3).
26
ICC RPE, Rule 128(3). In relation to this, see Situation in the Democratic Republic of the Congo: Prosecutor v

Mbarushimana (Decision on the Defence request to exclude the Prosecution’s amended document containing the charges and

amended list of evidence) ICC-01/04-01/10 (22 July 2011), in which the Single Judge chastises the Prosecutor for having

amended the charges and the supporting evidence too close to the actual confirmation of charges hearing, under the guise of

‘correcting’ mistakes in the originally filed document.

27
Prosecutor v Lubanga (Decision on the Confirmation of Charges) (n 13).
28
Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Document Containing the Charges) ICC-

01/04-01/06 (28 August 2006).

29
ICC Statute, art 8(2)(e).
30
Prosecutor v Lubanga (Document Containing the Charges) (n 28) para 7.
 31
Following challenges by both the defence and the victims’ representatives, the Pre-Trial

Chamber found that there were in fact two phases in the timeframe of the indictment. In the first one,

from July 2002 to June 2003, the presence of Uganda as an occupying power allowed for a
32
characterisation of the conflict as international. After Uganda’s withdrawal, on 2 June 2003, the
33
conflict was best characterised as non-international. As a consequence, whereas the counts under

Article 8(2)(e)(vii) were confirmed for the second phase, Lubanga was charged under Article

8(2)(b)(xxvi), the equivalent provision on child soldiers, but in relation to international armed

conflicts, for the first phase34. Two points need to be highlighted in relation to this reclassification of

charges.

First, it is notable that the Pre-Trial Chamber decided against following the procedure for the

amendment of charges as laid down by the Statute whereby the hearing should be adjourned to give
35
the Prosecutor a chance to amend the charges if the evidence submitted establishes a different crime.

Instead, the judges apparently adopted a teleological reading of Article 61(7)(c)(ii), and found that

such a provision was meant as a safeguard of the rights of the defence. More specifically, it was

designed to avoid that the chamber commit ‘a person for trials for crimes which would be materially

different from those set out in the document containing the charges and for which the defence would
36
not have had the opportunity to submit observations at the confirmation hearing’. In light of this, the

Pre-Trial Chamber found that because both articles under consideration, 8(2)(e)(vii) and 8(2)(b)(xxvi),

criminalise the same conduct, irrespective of the nature of the armed conflict, it was ‘not necessary to

31
Prosecutor v Lubanga (Decision on the Confirmation of Charges) (n 13) para 200.
32
Ibid para 220.
33
Ibid paras 227–237.
34
It should however be noted that in the final Judgment, the Trial Chamber actually recharacterised the facts in
application of Regulation 55 of the Regulations of the Court, and found that the conflict was of a non-
international character for the duration of the period covered by the charges (Situation in the Democratic
Republic of the Congo: Prosecutor v Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06
(14 March 2012) § 566).
35
ICC Statute, art 61(7)(c)(ii).
36
Prosecutor v Lubanga (Decision on the Confirmation of Charges) (n 13) para 203. It is notable that ICC Statute, art

67(7)(c) is silent as to the issue of the rights of the defense and only mentions the prosecutor as the ‘beneficiary’ of the

adjournment.
 37
adjourn the hearing and request the Prosecutor to amend the charges’. While this position might be

understandable from the point of view of the judges, it faces one major challenge: it is not permitted

by the Statute, as it does not fit into any of the three options open to the Pre-Trial Chamber at the

confirmation of the charges stage, as discussed above. Further, the Pre-Trial Chamber’s assertion of

the purpose of the provision is not substantiated in the decision, either by reference to the Statute

itself, or by recourse to the travaux préparatoires. Moreover, in spite of great similarities between the

original and the amended charges (both provisions are essentially identical), the fact remains that,

technically, these are two distinct crimes. In effect, the Pre-Trial Chamber, by giving itself the power

to amend the charges directly, changed the distribution of competences foreseen by the drafters. The

policy consequences are important and the decision suggests that the judges at the ICC are willing, as

their colleagues at the ICTY, to adopt a flexible approach to the interpretation of the Statute.

It has been suggested that:

the Pre-Trial Chamber has no subsequent control over the Prosecutor, and it would

seem that he cannot be under an obligation to investigate and prove certain charges
38
simply because the confirmation decision has added them.

This is technically true, but practically speaking, to the extent that the person is committed to trial on

the confirmed charges, should the Prosecutor ‘choose’ not to investigate and prove the substituted

charges, the person would simply be acquitted, which would be against the Prosecutor’s interest. In

effect, although there is no subsequent control of the Pre-Trial Chamber over the Prosecutor, he or she
39
remains bound by the charges confirmed. In this author’s view, however, there is one benefit to the

Pre-Trial Chamber’s decision, insofar as it illustrates the irrelevance of defining a conflict as ‘internal’

or ‘international’ where the same crime exists in both situations. Had the ICC Statute recognised that

there is no need for such a distinction where the same crime exists in both, and that in these

occurrences the dichotomies imported from International Humanitarian Law are essentially irrelevant,

this kind of debate on the Lubanga confirmation of the charges decision could have been avoided.

37
Ibid para 204.
38
Schabas (n 14) 743.
39
This has been confirmed by the Trial Chamber and is discussed further below.
 The confirmation proceedings in the Bemba case gave further scope to examine the role of the

Pre-Trial Chamber in relation to the charges. In that case, it appeared during the hearings that although

the Prosecutor had argued that Bemba was directly liable under Article 25(3) of the Statute, the

evidence showed that charging him under command responsibility (Article 28) would have been more

appropriate. The Pre-Trial Chamber therefore decided to exercise its power to adjourn the hearing and

request that the Prosecutor consider an amendment of the document containing the charges addressing
40
Article 28 as a possible mode of liability. In so doing, the Pre-Trial Chamber took the opportunity to

interpret the conditions of operation of the adjournment provisions in Article 61(7)(c)(ii).

The judges stressed the difference between this provision, and sub-paragraphs (a) and (b) of
41
Article 61(7), which concern the actual decision to confirm (or not) the charges, and sub-paragraph

(c), under which the Pre-Trial Chamber does not take a decision on the merits of the case, but rather

decides to adjourn proceedings to allow the Prosecutor to overcome deficiencies in the evidence or
42
legal characterisation presented. As a consequence of this difference, the standard of proof is not the

same as for the confirmation of charges. Instead of the standard of ‘substantial grounds to believe that
43
the person committed each of the crimes charged’, the standard of proof under Article 67(c)(ii) is

rather that ‘the evidence submitted appears to establish a different crime’. In this sense, it ‘is a lex

specialis that establishes a lower threshold and accordingly requires a specific approach to the
44
evidence as well as a different kind of determination to be made by the Chamber’. The Pre-Trial

Chamber also took the opportunity to explain what was meant by a ‘different crime’, and interpreted it

to include both the crime and the mode of participation, in light of the close correlation between the
45
two. This interpretation was also justified in the interests of fairness, because if the mode of liability

40
Situation in the Central African Republic: Prosecutor v Bemba (Decision Adjourning the Hearing Pursuant to Article

61(7)(c)(ii) of the Rome Statute) ICC-01/05-01/08 (3 March 2009).

41
See Section I above.
42
Prosecutor v Bemba (Decision Adjourning the Hearing) (n 39) para 14.
43
ICC Statute, art 61(7).
44
Prosecutor v Bemba (Decision Adjourning the Hearing) (n 39) para 18.
45
Ibid para 25.
were excluded from the purview of Article 61(7)(c)(ii), it would deprive the defence of its right to be

informed promptly of the nature, cause and content of the charge, as provided for by Article
46
67(1)(a).

II. Reclassifying the Charges at the Trial Phase

A. The Statutory Framework

The confirmation of the charges marks the end of the pre-trial procedure and triggers the constitution
47
of the Trial Chamber by the Presidency. In relation to the charges, the Statute provides for a limited

number of situations where any modification is possible. After the confirmation and ‘before the trial

has begun’, the Prosecutor can ask for an amendment to the charges with the permission of the Pre-
48
Trial Chamber. Further, ‘after the commencement of the trial, the Prosecutor may, with permission
49
of the Trial Chamber, withdraw the charges’. The Trial Chamber has found that the ‘commencement

of trial’ is the ‘true opening of the trial when opening statements, if any, are made prior to the calling
50
of witnesses’. Apart from this last possibility for the Prosecutor to withdraw the charges once the trial

has begun, neither the Statute nor the RPE provide for any discretion, either on the part of the

Prosecutor or the Trial Chamber, to amend the charges after the confirmation has taken place.

It has been argued, however, that the Trial Chamber would have an inherent power to contest

the legal characterisation given by the Pre-Trial Chamber in the confirmation of charges decision. This

argument was put forward by the Prosecution in the Lubanga case, who argued this based on the role

46
Ibid para 28.
47
ICC Statute, art 61(11).
48
Ibid art 61(9).
49
Ibid.
50
Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Decision on the status before the Trial

Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and

the manner in which evidence shall be submitted) ICC-01/04-01/06(13 December 2007). For a general discussion on the

notion of the ‘beginning of the trial’ in the ICC Statute, see D Jacobs, ‘The Importance of Being Earnest: The Timeliness of

the Challenge to Admissibility in Katanga’ (2010) 23(2) LJIL 331–342.

 51
of the Trial Chamber to ‘ensure that the trial is fair and expeditious’ and on the fact that it can rule
52
on ‘any other relevant matter’. This was strongly rejected by the Trial Chamber, recalling that ‘the
53
power to frame the charges’ was a key function of the Pre-Trial Chamber and the result was binding
54
on the Trial Chamber. In the Trial Chamber’s reasoning, because the exercise of functions under

Article 61(11) is ‘subject to paragraph 9’, that power afforded to the Pre-Trial Chamber as regards the
55
charges remains with it, at least in the ‘preparation phase of the trial’. Although not clearly indicated
56
by the Trial Chamber, one can only assume that the reasoning holds equally once the trial has begun.

In light of the above, it appears that the framework provided for in the Statute and the RPE in

relation to possible amendments, re-characterisation and withdrawal of the charges clearly

distinguishes between the pre-trial phase and the trial. Prior to the trial, the content of the charges is

determined by the Prosecutor, with the ultimate decision resting with the Pre-Trial Chamber, whereas

once the trial has begun, the Prosecutor may only withdraw charges, and neither him nor the Trial

Chamber have any power to modify them. It remains to be seen whether this clear statutory framework

is challenged by the adoption by the judges of Regulation 55 in the Regulations of the Court.

B. Regulation 55 and the Power to Legally Re-Characterise the Facts

In May 2004, the judges of the ICC adopted the Regulations of the Court in application of Article 52
57 58
of the Rome Statute. These Regulations are meant to be ‘necessary for its routine functioning’.

51
ICC Statute, art 64(2).
52
Ibid art 64(6)(f).
53
Prosecutor v Lubanga (Decision on the Status of Evidence) (n 49) para 39.
54
Ibid para 43.
55
Ibid para 40.
56
For a contrary interpretation, see O Triffterer, ‘Article 74’ in O Triffterer (ed) Commentary on the Rome Statute of the

International Criminal Court (2nd edn CH Beck, Baden-Baden 2008) 1396, suggesting that because the Statute authorises

the Trial Chamber to exercise all functions of the Pre-Trial Chamber, art 61(9) can also be applied during the Trial.
57
On art 52 see Schabas (n 14) 650–652 and H-J Behrens and C Staker, ‘Article 52’ in O Triffterer (ed) Commentary on the

Rome Statute of the International Criminal Court (2nd edn CH Beck, Baden-Baden 2008) 1053–1063.
58
ICC Statute, art 52(1).
 59
They are adopted by a majority of the judges, and are subject to the approval of the State Parties.

Among those Regulations, Regulation 55 grants the Trial Chamber authority to modify the legal

characterisation of facts, under certain circumstances. The Regulation concerns two different stages of

the proceedings. The first sub-regulation complements the operation of Article 74 which relates to the

final judgment of the Trial Chamber. More particularly, it applies in relation to Article 74(2) according

to which ‘the Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire

proceedings. The decision shall not exceed the facts and circumstances described in the charges and

any amendments to the charges’. The Regulation therefore allows the Chamber in its decision, and

within the boundaries of the facts, to legally re-characterise them in relation to the crimes or the forms

of participation. On the other hand, the following sub-regulation allows the Court, in the course of the

trial, to put the participants on notice that the legal characterisation of the facts might be subject to

change. Regulation 55(3) provides that particular attention to the rights of the accused shall be paid in

the exercise of this function.

The Lubanga case provided the Judges with an opportunity to interpret this Regulation more
60
specifically. In May 2009, the legal representatives of the victims filed a joint request pursuant to

Regulation 55 to ask the Trial Chamber to consider a legal re-characterisation of the facts. According

to this request, the evidence presented during the trial suggested that serious crimes falling under the

jurisdiction of the court where being committed during the period of the case which could be
61
‘characterized in a different manner from that chosen by the Prosecution’. More specifically, the

victims contended that there was evidence of inhuman treatment, cruel treatment and sexual slavery as
62
war crimes, and sexual slavery as a crime against humanity. Trial Chamber I issued its Decision on

59
Ibid art 52(3).
60
Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Joint Application of the Legal Representatives

of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court) ICC-01/04-

01/06 (22 May 2009).

61
Ibid para 15.
62
Ibid para 17.
 63 64
14 July 2009. In a fairly short decision, the majority of the Chamber, Judge Fulford dissenting,

found that, in application of the requirements of Regulation 55(2), and in light of the evidence heard

and the submissions of the legal representatives of the victims, the ‘legal characterization of the facts

may be subject to change’ and ‘accordingly, the parties and participants have a right to receive early
65
notice’. In relation to the scope of application of Regulation 55(2) it was considered by the majority

that the requirement that the change in the legal characterisation of facts not exceed the facts and

circumstances described in the charges as contained in Regulation 55(1) did not apply in this situation.

The two paragraphs of Regulation 55 were interpreted as applying to two different stages of the

proceedings, which justified that different conditions apply, most notably the possibility to recall a
66
witness that has already testified or call a new witness.
67
The Appeals Chamber rejected this interpretation of the Regulation, holding that it would lead

it to be in contradiction with the wording of Article 74, which provides that ‘the decision shall not
68
exceed the facts and circumstances described in the charges and any amendments to the charges’.

According to the Appeals Chamber, ‘the purpose of the provision was to bind the Chamber to the

factual allegations on the charges. The Trial Chamber’s interpretation of Regulation would be
69
inconsistent with that purpose’. With this conclusion, the Appeals Chamber agreed with the Minority

Opinion of Judge Fulford, who had tried to demonstrate at length that all the paragraphs of the

63
Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Decision giving notice to the parties and

participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the

Regulations of the Court) ICC-01/04-01/06 (14 July 2009).

64
Ibid (Dissenting Opinion of Judge Adrian Fulford).
65
Prosecutor v Lubanga (Regulation 55 Decision) (n 62) para 33.
66
ICC Regulations, Regulation 55(3)(b).
67
Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Judgment on the appeals of Mr Lubanga Dyilo

and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and

participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the

Regulations of the Court’) ICC-01/04-01/06 (8 December 2009).

68
ICC Statute, art 74(2).
69
Prosecutor v Lubanga (Appeals Chamber Decision on Recharacterization) (n 66) para 91.
 70
Regulation should be read together, and that therefore, Regulation 55 was ‘a singular and indivisible
71
provision’. Despite the policy considerations that would justify the existence of this power granted to

the Trial Chamber, discussed in some detail below, there is some doubt regarding the legality of

Regulation 55, even in the narrower interpretation given by the Appeals Chamber. In light of the
72
absence of any provision relating to an amendment of the charge after the commencement of trial, it

is difficult to imagine how Regulation 55 can in fact be reconciled with the Statute as it stands.

It has been argued that the change of the legal characterisation of facts does not necessarily
73
amend the charges, because it only changes one component of Regulation 52. If this position is

perfectly tenable on principle, it seems to be at odds with any common sense idea of what ‘change’

means, under which it seems difficult to argue that a modification of the crime being prosecuted is not
74
an amendment to the charge itself. Moreover, under this approach, what would prevent a Trial

Chamber to add new facts to the case, while still keeping the same legal characterisation? This would
75
not be an amendment because it would only modify one component of Regulation 52. Finally, this

‘decoupled’ approach to the elements of the charge runs contrary to the case-law which has clearly
76
said that a change to the legal characterisation requires an amendment of the charges.

One general argument put forward to justify the legality of Regulation 55 is that the drafters of

the ICC Statute left the question of the legal re-characterisation of facts open, through the operation of

70
Prosecutor v Lubanga (Regulation 55 Decision) (n 62) paras 21–30.
71
Ibid para 27.
72
ICC Statute, art 61(9).
73
C Stahn, ‘Modification of the Legal Characterization of Facts in the ICC System: a Portrayal of Regulation 55’ (2005) 16

CLF 1–31 at 17. See also GM Pikis, The Rome Statute of the International Criminal Court (Martinus Nijhoff, Leiden 2010)

at 141–142 (arguing that because Regulation 55 relates to the legal characterisation of facts, ‘this is not equivalent to the

amendment of a charge, importing the commission of a crime other than the one charged’).
74
See Schabas (n 14) 779.
75
See Section I above.
76
Prosecutor v Bemba (Decision Adjourning the Hearing) (n 39).
 77
the nebulous concept of ‘constructive ambiguity’. This was essentially the position taken by the

Appeals Chamber in the Lubanga case when considering whether Regulation 55 was in contradiction

with Article 61(9). According to the appellate judges, ‘[Article 61(9)] does not exclude the possibility

that a Trial Chamber modifies the legal characterization of the facts on its own motion once the trial
78
has commenced’. The Appeals Chamber therefore concluded that ‘Article 61(9) of the Statute and

Regulation 55 address different powers of different entities at different stages of the procedure, and the
79
two provisions are not inherently incompatible’. The general idea is therefore that because Article

61(9) does not explicitly exclude the powers of Regulation 55, there is room to interpret the Statute as

allowing the practice of legal re-characterisation. This also informs the position taken in relation to

Article 74(2). According to the Appeals Chamber, ‘this latter provision binds the Trial Chamber only

to the facts and circumstances described in the charges or any amendment thereto, but does not make
80
reference to the legal characterization of these facts and circumstances’.

This kind of approach is debatable. It is one thing to acknowledge that there was disagreement
81
on the issue of legal re-characterisation of facts in the drafting process, but it is altogether another to

decide that the Statute is ambiguous as a result. A treaty, as any contract, is always the result of a

negotiating process and only contains what was agreed on by the parties. It is a slightly puzzling

argument to say that what did not make it into the Statute because of a disagreement can be

subsequently read into it by another entity. The Statute clearly lays down the situations and conditions

under which the charges can be amended and there is no language in the Statute to suggest that there is

any discretion to add new facets to those applicable circumstances. In light of this, there does not seem

77
Stahn (n 72) 4. See also G Bitti, ‘Two Bones of Contention Between Civil and Common Law: The Record of the

Proceedings and the Treatment of Concursus Delictorum’ in H Fischer, C Kress and S Rolf Lüder (eds) International and

National Prosecution of Crimes Under International Law (Spitz, Berlin 2001) 272, 284–286.
78
Prosecutor v Lubanga (Appeals Chamber Decision on Recharacterization) (n 66) 77.
79
Ibid.
80
Ibid para 93. See also Stahn (n 72) 17.
81
For an overview of proposals see Stahn (n 72) 10–11.
 82
any room to apply the concept of ‘constructive ambiguity’ to the present issue. In addition, the

reasoning of the Appeals Chamber is all the more surprising given its own interpretation of Regulation

55 as not allowing the Trial Chamber to go beyond the facts alleged by the Prosecutor, because it
83
‘would be contrary to the distribution of powers under the Statute’. How does that not apply also to

the legal characterisation of facts, which is also left, according to the Statute, to the Prosecutor?

In spite of these very serious questions surrounding the legality of Regulation 55, a number of

justifications have been put forward to justify its inclusion. One argument, which mirrors what has

been put forward in relation to the legality of the Regulation, is that it fills a gap of something that was
84
not settled in the founding documents of the Court. This is however once again a biased way of

presenting the situation, because it presumes that if something is not explicitly in the Statute, it is

missing from it. But, in the absence of a specific provision, the Statute as it stands does provide an

answer to the above-raised question: if the elements of the charges, as confirmed by the Pre-Trial

Chamber, have not been proven, then the person is acquitted. There is nothing ambiguous or unclear

about this textual application of the Statute. This relates to another justification for Regulation 55

which is often advanced: that is, to avoid an ‘impunity gap’, whereby an accused person could be

acquitted, even though it had clearly been demonstrated that he or she committed a crime within the
85
jurisdiction of the Court.

82
This relates more generally to the idea that the absence of a provision in a Statute is due to a lacuna by the drafters. The

Appeals Chamber has had the opportunity to express themselves on this point in the past. See Situation in the Democratic

Republic of the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31

March 2006 Decision Denying Leave to Appeal) ICC-01/04-168 (13 July 2006) para 41, rejecting the Prosecutor’s assertion

that the drafters had ‘forgotten’ a ground for appeal against a Pre-Trial Chamber decision on the basis that the absence of

such a ground for appeal was to be considered as the intent of the drafters.
83
Prosecutor v Lubanga (Appeals Chamber Decision on Recharacterization) (n 66) para 94.
84
Stahn (n 72) 3.
85
Ibid; Prosecutor v Lubanga (Appeals Chamber Decision on Recharacterization) (n 66) para 77; Bitti (n 76) 287 (arguing,

before the adoption of Regulation 55, that it would be in contradiction with the primary goal of the Court, namely to end

impunity, if the Trial Chamber were not able to change the legal characterisation of facts).
 One can wonder whether this broad teleological policy approach can be an adequate legal

justification for a statutory provision. Indeed, this could, for example, be the basis for allowing the

judges to take into account new facts during the trial, for not having a charging document at all, for

allowing any type of evidence, irrespective of its credibility, or allowing torture as a mode of

interrogation. This would certainly increase the likelihood of a conviction and close the ‘accountability

gap’, but would obviously be odious to those who propose the impunity argument as justification for

Regulation 55. The question, therefore, ought not to be whether a provision is in conformity with the

objectives of the Statute, but rather whether those objectives allow for its creation. In this sense, it is

unlikely that such a polymorphous and indeterminate notion as ‘the end of impunity’ can specifically

justify the creation of any new legal provision. A further argument put forward to justify Regulation

55 is to avoid prosecutorial charging strategies whereby the Prosecutor ‘burden[s] the Chambers with
86
an overload of alternative or cumulative charges in order to avoid the risk of acquittal’. This

argument is equally unconvincing on a number of levels.

First, it is not obvious how Regulation 55 directly responds to the concern of an ‘overload’ of

charges. It relates to the power of the Trial Chamber when reaching its decision, and does not directly

circumscribe the Prosecutor’s discretion in the charging policy. Neither is it clear how it encourages ‘a
87
precise charging practice from the very beginning of the proceedings’. On the contrary, the

Prosecutor could rely on the fact that Regulation 55 might be used as a justification for imprecision in

his charging policy, because any ‘mistake’ in the legal characterisation could be ‘corrected’ at trial.

Second, it creates a sense that there is a necessary link between streamlining the process with focused

charges and the power of the Trial Chamber to legally re-characterise the facts. But these issues need

not be automatically related. Indeed, it is perfectly possible to imagine that rules be provided

compelling the Prosecutor to adopt a minimalist charging policy, as an objective in and of itself,

independently of whether the Trial Chamber has the power to change the chosen and confirmed legal

86
Stahn (n 72) 3; HP Kaul, ‘Construction Site For More Justice: The International Criminal Court After Two Years’ (2005)

99 AJIL 370–384.
87
Stahn (n 72) 30 (emphasis added).
classification during the trial. Third, the link that is drawn between both issues ignores the complex

policy considerations that underscore the Prosecutor’s charging decisions. Indeed, in the pre-trial

phase, some time before the actual trial, it is just as likely that questions of availability of evidence and

opportunity guide the choice of charges, rather than the far-away prospect that the Trial Chamber

might see fit to adopt a different legal characterisation. Further, such an argument ignores the current

procedural framework of the Statute, which requires that the Prosecutor put forward specific evidence

for specific charges to be confirmed by the Pre-Trial Chamber. If one accepts the idea that the legal

characterisation of facts is indeed an element of the charge, there is in fact no room for the Prosecutor

to take into account the possibility of Regulation 55 being applied, because a flexible charging policy

in the pre-trial phase would not meet the requirements of the confirmation of charges proceedings.

Finally, it is rather unfortunate for the proponents of the idea that Regulation 55 could

streamline the procedure that the only practical application of the provision so far has taken place in

the Lubanga case, where the Prosecutor had in fact adopted an extremely limited set of charges and

where the use of the Regulation by the Trial Chamber was aimed at adding new charges.

III. Shifting Balances at the ICC

The practice of the ICC chambers in relation to charges, both in the pre-trial phase and the trial phase

therefore partially departs from the actual statutory framework as drafted in Rome. Beyond the

previous discussion of the content of this practice, this final section will highlight how it shifts a

number of balances at the ICC. First of all, this practice, especially the adoption of Regulation 55,

essentially shifts the balance away from an adversarial approach to an inquisitorial approach to

international criminal procedure. Indeed, in the adversarial approach, the judge ‘is an observer and an
88
umpire’, and the Prosecutor has the burden of correctly preparing his case and bears the full

responsibility for the results of the choices made in the charges, therefore leading to the result that any

mistake in that respect profits the accused. This is the position taken by the Statute of the Court. In the

inquisitorial approach, on the other hand, the judge is the ultimate guarantor of the trial achieving

88
S De Smet, ‘A Structural Analysis of the Role of the Pre-Trial Chamber in the Fact-Finding Process of the ICC’ in Stahn

and Sluiter (n 23) 409.

 89 90
objectified goals of truth and justice. In this second approach, the judge has a ‘managerial role’

and a corrective power over the elements of the trial, therefore relieving the Prosecutor of some of his

obligations and increasing the likelihood of conviction for the accused. In this sense, one could say

that now the risk of an inadequate legal characterisation rests with the accused, which is the
91
consequence of the adoption of Regulation 55.

It should be noted, however, that the case-law does not always favour the prosecution over the

accused in this balance. As indicated by the Pre-Trial Chamber in the Mbarushimana case, which

struck down the Prosecutor’s attempt to amend the charges without following the provided procedure:

‘the errors, internal inconsistencies and omissions which appear in the document containing the

charges and the list of evidence are the responsibility of the Prosecutor and that any prejudice resulting
92
therefrom must be borne by the Prosecutor and cannot be shifted to the Defence.’ Second of all, the

choice of charges not only affects the conduct of the actual trial of the accused. It also affects the

operation of other provisions of the Statute. Two of those can be mentioned briefly. First, under the

principle of complementarity, a case might be inadmissible before the Court if it ‘is being investigated
93
or prosecuted by a State which has jurisdiction over it’. This provision has been interpreted in a

narrow way, and held to apply not only to the same person, but also if the national proceedings relate
94
to the same conduct, which includes the legal characterisation of that conduct.

89
R Heinsch, ‘How to Achieve Fair and Expeditious Trial Proceedings before the ICC: Is it Time for a More Judge-

Dominated Approach?’ in Stahn and Sluiter (n 23) 490.

90
De Smet (n 87) 410.
91
For a discussion on the common law and civil law approaches to the legal recharacterization of facts, see Stahn (n 72) 4–6;

Prosecutor v Kupreškić et al (Judgment) IT-95-16-T (14 January 2000) paras 728–733.

92
Situation in the Democratic Republic of the Congo: Prosecutor v Mbarushimana (Decision on the Defence request to

exclude the Prosecution’s amended document containing the charges and amended list of evidence) ICC-01/04-01/10 (22

July 2011) 6.
93
ICC Statute, art 17(1)(a).
94
See Situation in the Democratic Republic of the Congo: Prosecutor v Lubanga (Decision on the Prosecutor’s Application

for an Arrest Warrant, Article 58) ICC-01/04-01/06 (10 February 2006), §37–39. The ‘same person, same conduct’ approach
 This approach means that the legal characterisation of the facts is crucial to the question of

applying the criteria of complementarity: for the accused to be able to challenge admissibility on this
95
ground, he must be fully aware, at the time that this challenge is possible, what he is being

prosecuted for. Further, the possibility that the Trial Chamber could change the legal characterisation

of the facts up until the judgment, through the operation of Regulation 55, raises the question of

whether this could not be deemed to be a way to circumvent the requirements of complementarity,

therefore violating the rights of the defence, because a challenge on this ground is no longer possible
96
after the commencement of trial. A second challenge which can only be raised at the start of trial

could also be affected by the current framework on the legal re-characterisation of facts: that is, ne bis
97
in idem. Under this well-known rule, a person cannot be prosecuted twice for the same crime. In the
98
Statute of the ICC, it applies both to national proceedings in relation to the Court, and to the Court in
99
relation to national proceedings. This second situation is particularly interesting for the purposes of

our discussion. Article 20(3), in its reference to ‘the same conduct’ clearly implies that the legal

characterisation of facts is a key element in mounting a challenge to admissibility based on the ne bis
100
in idem principle. It therefore follows that a subsequent change in the legal characterisation during

the course of the trial might pave the way for a challenge to admissibility based on a prior conviction

relying on that specific new crime.

These two examples of how the current framework on charges might affect other provisions of

the Statute illustrates the fact that any changes made to the balance struck by the Statute, as is the case

with Regulation 55, may ultimately have unforeseen, and probably undesired, consequences. Indeed, it

has been consistently following in subsequent practice. See most recently Situation In The Republic Of Kenya: Prosecutor v

Ruto et al (Decision on the Admissibility Challenge) ICC 01/09-01/11 (30 May 2011).
95
That is, at the commencement of trial, pursuant to ICC Statute, art 19(2).
96
Ibid art 19(4).
97
Ibid art 20.
98
Ibid art 20(2).
99
Ibid art 20(3).
100
Ibid art 17(1)(d).
has already been shown that Regulation 55 was used, not to streamline the procedure, as its defenders

argue, but to burden it with new charges. The examples of complementarity and ne bis in idem show

that recourse to that Regulation could further slow down proceedings by creating new opportunities

for procedural delays due to late challenges to admissibility. Finally, the current framework on the

amendment of charges should be seen in the broader context of the constant shifts of power between

the organs of the Court, notably the Chambers and the Prosecutor. Indeed, the early case-law of the

Court discussed in this chapter shows that both the Pre-Trial Chamber in the confirmation of charges

and the Trial Chamber, with the use of Regulation 55, have increased their control over the charges

beyond what was initially envisioned by the Statute. This echoes the practice of the Pre-Trial Chamber

which has on a number of occasions encroached upon the autonomy of the Prosecutor over the

conduct of investigations by, inter alia, calling for a ‘progress report’ on the evaluation of a
101 102
situation, and inviting amicus briefs on issues of witness protection and evidence preservation.

Conclusion: International Criminal Judges as Lawmakers

It is beyond the scope of this chapter to discuss the issue of the lawmaking powers of the international

judges. It is however interesting to note how the framework on the amendment of charges informs this

crucial question. Indeed, what the previous analysis shows is that, despite the notable differences

between the ICC and the ad hoc tribunals, in terms of the specificity of the Statute, and the margin of

appreciation left to the judges, ICC Chambers have shown the same general tendency as their

counterparts at the ad hoc tribunals to use all available means at their disposal to expand their powers,

even in the absence of any clear textual support. These means include the rules of interpretation, as

illustrated by the Pre-Trial Chamber’s decision to re-characterise the nature of the armed conflict in

101
Situation in the Central African Republic (Decision Requesting Information on the Status of the Preliminary Examination

of the Situation in the Central African Republic) ICC-01/05 (30 November 2006).
102
Situation in Darfur, Sudan (Decision inviting Observations in Application of Rule 103of the Rules of Procedure and

Evidence) ICC-02/05 (24 July 2006). In other occurrences, the Chambers have on the contrary afforded too much discretion

on the Prosecution. See Jacobs (n 23) (arguing that the Chambers have failed in exercising their judicial function properly by

refusing to define gravity in the admissibility phase and therefore not adequately reviewing the Prosecutor’s determination of

the gravity of a case).

the Lubanga case without requesting that the Prosecutor amend the charges. Another illustration of

this is the use of the ‘lacuna argument’, whereby the absence of an explicit prohibition in the Statute

on a certain issue is interpreted as being an implicit authorisation. This echoes the Lotus approach to
103
international law, whereby what is not prohibited is allowed. Also available to the judges of the

Court, despite having lost control over the RPE, is the possibility to enact what could be described as

‘secondary legislation’, through the drafting of the Regulations of the Court, thus enabling them, as
104
illustrated by Regulation 55, to grant themselves powers that were not envisioned in the Statute.

This tendency for judicial lawmaking, and more generally for judicial creativity, is a permanent
105
feature of international tribunals, and more specifically of international criminal tribunals. In this

latter context, it raises specific difficulties, in light of the application of traditional criminal law

concepts such as the principle of legality and the protection of the rights of the defence106. It is

therefore troublesome that, despite the increasing codification of international criminal law and

international criminal procedure, international judges still resort to quasi-legislative powers that

confuse their role as a judicial organ and continue to affect their authority, due to the perceived

arbitrariness of the methodology employed.

Therefore, the real question raised by this chapter, beyond the discussion of the modalities of

amendment of the charges, and the policy considerations that justify or not the adoption of certain

rules, is whether the judges should be left to decide on these complex issues. I would argue that the

legitimacy of the international criminal law system rests on a clear separation of roles between those

who create the rules and those who apply them. Arguments that invoke the efficiency of such a

103
SS Lotus case (France v Turkey) (1927) PCIJ Rep (Ser A No 10) 28.
104
For a contrary interpretation see C Stahn, ‘Modification of the Legal Characterization of Facts in the ICC System: a

Portrayal of Regulation 55’ (2005) 16 CLF 1, 31 (arguing that because Regulation 55 only refines a power ‘implanted’ in

Article 74(2), ‘the case for a change in practice was conveyed in a quiet fashion in the ICC system, namely by legal

interpretation rather than judicial lawmaking’).

105
S Darcy and J Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP, Oxford 2010) 19.
106
On the scope of the principle of legality in International Criminal Law, see D Jacobs, ‘Positivism and
International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories’, in J d’Aspremont and J
Kammerhofer (eds), International Legal Positivism in a Postmodern World (CUP, Forthcoming) Available at
SSRN: http://ssrn.com/abstract=2046311.
method, in the light of the reality of the slow legislative process at the international level, are short-

sighted, because the international legal order, if it is to achieve its objectives to abide by the rule of

law, will not forever be able to escape the necessary self-reflection on the separation of powers that all

modern legal systems have gone through. In the words of Montesquieu, one of the forefathers of this

foundational question:

there is no liberty, if the judiciary power be not separated from the legislative and

executive. Were it joined with the legislative, the life and liberty of the subject would

be exposed to arbitrary control; for the judge would be then the legislator. Were it

joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether

of the nobles or of the people, to exercise those three powers, that of enacting laws,
107
that of executing the public resolutions, and of trying the causes of individuals.

107
C De Montesquieu, The Spirits of Laws (Hafner Press, New York 1949) 152.