In order to reach its decision, the Court relies on Regulation 55(2) of the Court's Regulations, according to which:
"If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change."
As much as I would like to disagree with it entirely on principle, I have to agree partially with the Chamber, or at least admit that their interpretation of the Statute and Regulations is possible. According to the Dissenting Opinion, as well as Kevin Heller at Opinio Juris, the use of Regulation 55(2) is contrary to both Article 61(9) of the Statute and Article 74(2) of the Statute.
Let's start with Article 61(9), dealing with the confirmation of charges and according to which "After the commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges". The dissenting analysis is that this means that the Trial Chamber's only power in relation to the charges is to allow the Prosecutor to withdraw them. This makes sense, but it is also possible to read this provision as laying down the powers of the Prosecutor, not the Trial Chamber. This could be confirmed by the grammatical constructionof the Article, which states that "The Prosecutor may..." rather than "the Trial Chamber may not..." Moreover, Regulation 55(2) relates the legal qualification of facts, not the question of charges. Of course this sounds like semantic hair-splitting, and I agree, but unfortunately, the multiplication of terms is the drafters' fault, not mine.
As for Article 74(2), it relates the requirements for the decision: "the decision shall not exceed the facts and circumstances described in the charges. the Court may base its decision only on evidence submitted and discussed before it at trial". The Trial Chamber contends that this requirement does not apply to Regulation 55(2), because it comes into play during the trial, and not in taking the decision. It bases its argumentation on a comparison with Regulation 55(1), which expressly refers to Article 74(2) and its conditions. Again, as much as I would like to disagree with the Majority Decision, their interpretation, even if it doesn't make sense, is possible given the drafting of the various provisions. If the drafters wanted to include the Article 74(2) safeguard in Regulation 55(2), they shoud have included it!
Where I do have a major issue with the decision, and this is where the criticism should focus, is on the definition of "legal characterisation". On this point, I perfectly agree with the minority opinion. The new crimes brought forward are so removed from the ones in the original charges, that the facts already brought forward would not be sufficient to be able to rely on them for a conviction. New facts would necessarily be needed, especially in relation to the widespread and systematic character of the proposed crimes against humanity charge of sexual slavery and the proof of Lubanga's mens rea in relation to that, which is different that the one for the war crime of enlisting child soldiers. Such a broad definition of "legal characterisation" basically allows the Trial Chamber, nudged forward by the victims, to bring entirely new charges against a defendant during the Trial, which is extremely problematic for the rights of the defense, even if the Trial Chamber did recognise that it needs to give sufficient time to Lubanga to respond, hence the notice under Regulation 55(2).
In conclusion, what to make of this decision?
In my opinion, the only real bad decision-making is in relation to the the legal definition of "legal characterisation". If not, they make use of the poor drafting of the Statute, RPE and Regulations. Some authors call this "constructive ambiguity", which is often lauded as allowing the judges some leeway in adapting the statute to new situations. But, even accepting, for the sake of argument, that it is a good thing to allow criminal judges to makes up rules as they go along, one must accept in consequence that this "flexibility" can go both ways, depending on the agendas of the judges (more on this below).
This problematic articulation of the different rules of the ICC legal framework is often due to a pick-and-choose mixture of common law and civil law systems. Both of them have their own logic. But when you take two conflicting rules from each system (in our case prosecutorial discretion, and judge-led trials) without thinking through how to articulate them, you will necessarily be faced with problematic decisions as this one.
Which brings me back to the more general policy considerations.
The first one is one of efficiency. Whatever one thinks of the decision, there is no denying that the use of this procedure will considerably lenghten a trial which has already been going on for far too long.
Secondly, this is not a suprising decision in light of the ongoing struggle between OTP and Chambers since the inception of the Court on who is in charge. This went on at the pre-trial phase, in relation to investigations, participation of victims, qualification of charges, and is obviously continuing in the trial phase.
Third of all, it shows the continuing, increasing and in my opinion problematic influence of victim participation in the proceedings. They had criticised (together with powerful NGOs) the fact that Lubanga was only charged with enlisting of Child Soldiers. And I had partly agreed with this criticism. But it is one thing to critisize and disagree with prosecutorial choices, it is another to actually allow the victims a procedural right to contest (or even change) the charges during the trial. As Kevin Heller points out, "that ship had sailed", and the trial itself is not necessarily the moment to come back on it.
Finally, related to this issue of victims' rights, i can't help but notice that once again the impetus in giving the victims more power comes from latin-american judges (Odio Benito, from Costa-Rica, and Blattman, from Bolivia), just as the first progressive decisions on victim participation had involved Judge Steiner from Brazil. This is not suprising, given the influence of the inter-american system in the development of victims' rights, through the recognition of an army of rights that have then be exported as unchallenged gospel in the realm of international criminal law, despite the sometimes flimsy legal justification of some of these rights (like the fabled right to truth) that blurs to the point of extinction the distinction between law and morals.
But lets keep this debate for another time...