Pursuant to Regulation 55(2) of the International Criminal Court, if, at any time during the trial, it appears to the Trial Chamber that the legal characterisation of facts may be subject to change, the Trial Chamber shall give notice to the participants of such a possibility.
In the Lubanga case, the Trial Chamber opined that this provision allows it to change the legal characterisation of facts “based on facts and circumstances that, although not contained in the charges, ... are established by the evidence at trial.” The Appeals Chamber in its Judgment of 8 December found this interpretation erroneous. According to the Appeals Chamber, Regulations 55 (2) and (3) may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.