Beruflich Dokumente
Kultur Dokumente
GROTIUS CENTRE
WORKING PAPER
2013/004-ICL
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
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
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
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
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
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.
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
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
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
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
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.
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
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
informed promptly of the nature, cause and content of the charge, as provided for by Article
46
67(1)(a).
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
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
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.
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 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-
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
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
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
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.
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
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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 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
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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
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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
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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-
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
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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
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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
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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
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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
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.
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).
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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
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
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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
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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
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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
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
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,
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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.