Legal Recharacterisation and the Materiality of Facts at the International Criminal Court: Which Changes Are Permissible?

The ICC's Regulation 55, which allows the Trial Chamber to modify the legal characterization of facts in the final judgment, has been used too often and too carelessly. Recharacterization must not exceed the facts and circumstances described in the charges, but material facts and their legal qualification are like communicating vessels; changing the latter affects the former (and vice versa). In their application of Regulation 55 to date, chambers have underappreciated this, treating cases as if they have blurry factual boundaries where material facts can be swapped, neglected, or created at will. This article is not a plea for abolition of Regulation 55, though, but explores which modifications are permissible, and finds that when comparing a change regarding the contextual elements or (sub)categories of crimes to a change regarding the mode of participation the latter is most problematic and often detrimental to the rights of the accused.