The Architecture of ICC Charges

Despite two decades of jurisprudence and procedural refinement, the International Criminal Court (ICC or Court) continues to struggle with the length, complexity, and unpredictability of its proceedings. Much has been written about the structural and political reasons for delay: fragile cooperation frameworks, evolving investigative practices, disclosure burdens, and the inherent complexity of mass atrocity crime (Length of the Proceedings at the ICC Report, pp. 132 et seq., Independent Expert Review of the ICC Report, paras 490 et seq.). Yet one of the most influential procedural instruments remains comparatively understudied: the Document Containing the Charges (DCC).

As the gateway between investigation and trial, the DCC defines the case. It is the document through which the suspect receives formal notice, the Pre-Trial Chamber (PTC) exercises its gatekeeping function under Article 61 of the Rome Statute, and the scope of disclosure, victim participation, and trial preparation is ultimately determined. For a document that carries such procedural weight, its drafting practice has remained surprisingly inconsistent. Across the Court’s procedural history, DCCs have varied enormously in length (Al Hassan – 457 pages; Yekatom & Ngaïssona – 164, Duterte – 15), structure (Yekatom & Ngaïssona – 13 sections, Ongwen – 10, Said – 2), clarity, narrative complexity, and internal organisation. These discrepancies are not merely stylistic curiosities since they have profound consequences on the fairness, efficiency, litigation patterns, and the predictability of proceedings. While these patterns have significant procedural consequences, they should be understood within the broader context of complex ICC proceedings.

This post argues that the structure of the DCC, including its internal architecture, its narrative use, separation of factual categories, and organisational discipline, remains one of the most overlooked drivers of both procedural fairness and efficiency at the ICC. Understanding how and why this happens is essential not only for legal scholars but also for practitioners, who are the protagonists of the pre-trial landscape.

The DCC’s Statutory Mandate: Simpler Than Its Practice

Regulation 52 of the Regulations of the Court (RoC) reflects a deliberately minimalist approach to the DCC. Accordingly, the document is required to identify the person concerned, to set out the material facts that provide a sufficient legal and factual basis for the charges, and to indicate the legal characterisation of those facts. The DCC is not intended to function as a comprehensive account of the investigation or of the broader conflict, but it is meant to delimit the case and notify the defence of what it must answer.

Yet practice has diverged considerably from this statutory archetype. Some DCCs are short, incident-based, and tightly structured. Others exceed 400 pages, combining material facts, evidentiary summaries, context, and political history in a single narrative. Several DCCs separate modes of liability and underlying factual allegations effectively, while others intertwine them in ways that eclipse the analytical framework. Amendments remain common, even late into the confirmation process. The result is therefore a procedural paradox: a document designed to create clarity and procedural economy is often drafted in ways that generate ambiguity and unpredictability.

Narrative Inflation and Its Consequences

One of the most persistent features of ICC charging practice is narrative inflation. This refers to the tendency of DCCs to include extensive contextual background, detailed historical narrative, and descriptions of conflict dynamics far beyond what is required for material facts. Such a narrative serves several understandable purposes: firstly, it situates the alleged conduct within a broader conflict, secondly, it helps frame the theory of liability, and thirdly, it demonstrates the scale or pattern of crimes. (A forthcoming report by the International Nuremberg Principles Academy offers a comparative overview of how DCCs have been structured and applied across ICC cases.)

But narrative has associated costs. When context and evidence become intertwined with material facts, the case becomes less clear. For the Defence, this makes it difficult to identify which allegations carry legal significance and which merely provide background, complicating decisions about what must be specifically addressed. The PTC’s Article 61(7) of the Rome Statute function becomes more difficult. Judges must identify material facts from a myriad of contextual assertions, which increases the likelihood of requests for clarification or reformulation. At the same time, narrative-heavy DCCs tend to generate disputes over specificity, scope, and notice (see e.g. Bemba, paras 110-117), often resulting in supplemental filings, postponements, or additional hearings. Ambiguous factual frameworks lead to later disagreements on Regulation 55 of the RoC boundaries and the scope of legal re-characterisation. Narrative inflation affects more than the length of the document. When the factual and contextual framework becomes broader, the confirmation process becomes more complex and risks becoming a micro-trial rather than a gatekeeping exercise.

The internal structure of the DCC has a far greater impact on pre-trial dynamics than its overall length. Charging documents built around clear incidents and a coherent presentation of material facts tend to move through confirmation with fewer disputes. Hybrid approaches, which mix incident-based and thematic elements, can produce their own challenges by creating uncertainty about the factual boundaries of the case and the room available for later re-characterisation. These patterns suggest that clear internal structure is the factor that supports fairness and procedural stability.

Material vs. Subsidiary Facts: A Doctrinal Fault Line

A central challenge lies in the longstanding failure to distinguish consistently between material facts and subsidiary facts. Although this distinction is well-developed in theory, ICC practice frequently blurs it. Material facts are those that must be proven to establish criminal responsibility. Subsidiary facts, by contrast, provide context or evidentiary detail but need not be pleaded (see e.g. Chambers Practice Manual (CPM), para. 36, Regulation 52(2) of the RoC, Bemba, paras 110 et seq.).

When the two are conflated, the DCC becomes structurally inconsistent. The Defence cannot readily identify what carries legal weight, while the PTC cannot easily determine whether the evidentiary threshold is met. And the door opens for litigating almost any detail, because everything appears to form part of the pleaded case. This ambiguity also feeds the enduring debates around Regulation 55 of the RoC concerning the PTC’s authority to change the legal characterisation of facts (see Katanga, paras 38-44, CPM, para. 67). If the factual boundaries of the DCC are unclear, disagreements about whether the legal characterisation can be adjusted are inevitable. A clearer factual architecture would reduce this tension and strengthen the guarantee of notice.

The Confirmation Hearing as a Structural Stress Test

The confirmation of charges hearing has become the most visible point at which the structure of the DCC exerts influence. When the DCC is coherent and incident-based, confirmation proceeds relatively smoothly. Judges focus on whether the evidence supports the material facts and whether the charges can be confirmed. The process is predictable and efficient. By contrast, when the DCC lacks internal structure, the confirmation process becomes a clarification exercise. Requests for additional submissions become more frequent, hearings may expand in scope and duration, and the line between confirmation and trial blurs. As a result, confirmation decisions tend to become longer and more complex.

Why Structure Matters More Than Style

The structural design of the DCC, especially the way in which the content is organised and presented, has a direct influence on procedural fairness. This is evident in relation to several core guarantees under the Rome Statute framework.

The clarity of the DCC is central to ensuring that the accused can effectively exercise the right to be informed in detail of the nature and cause of the charges under Article 67(1)(a) of the Rome Statute, which the DCC operationalises for the purposes of trial preparation. This guarantee can only be effectively realised where material facts are presented in a manner that distinguishes them from contextual narrative. Where the structure of the DCC mixes the boundaries, the accused may face uncertainty as to the case that must be answered. Furthermore, the internal organisation of the DCC affects the consistency and predictability of judicial decision-making. In addition, the clarity of the charging document is linked to the principle of equality of arms. Where the DCC merges factual allegations with argument or evidentiary detail, effective defence preparation becomes more difficult. For these reasons, the organisation of the DCC is directly connected to the protection of fair trial guarantees.

A Moderated Path to Improvement

Importantly, none of these issues requires statutory amendment. The Rome Statute and the Regulations already provide a workable framework. What is needed is greater consistency in drafting practice. This would mean a clear distinction between material and subsidiary facts, a stronger focus on incident-based factual presentation, and closer adherence to the minimalist approach reflected in Regulation 52 of the RoC. This is, of course, not a panacea for all systemic challenges at the ICC, but it can deliver meaningful improvements in procedural clarity.

These measures respect the diversity of cases while reducing procedural noise. A recent amendment to Regulation 52(2) of the RoC (since 2024) and Paragraph 36 of the CPM (since 2019) reinforce this approach. They now clarify that the Prosecution must distinguish material facts from evidentiary or contextual detail and set out the former with sufficient specificity. While Regulation 52(2) of the RoC strengthens the statutory basis for disciplined drafting, its effectiveness will ultimately depend on consistent application by OTP and PTCs and a shared institutional understanding of what factual precision requires in practice.

The DCC as a Blueprint

The DCC defines the framework within which the case will proceed and therefore shapes the conduct of subsequent proceedings. Where its structure is clear and coherent, the confirmation and trial phases can develop in a more predictable and focused manner. As the ICC faces increasingly complex factual situations, drafting discipline at the charging stage becomes even more essential. Improving the structural clarity of the DCC, therefore, offers a practical way to enhance procedural fairness and efficiency within the existing legal framework.