Deputy President William Ruto and journalist Joshua Sang' will face new charges after the judges allowed chief prosecutor Fatou Bensouda to introduce new elements to make it easier to prove the case against the two.
In a ruling released on Thursday, Justices Chile Ebof-Osuji, Olga Herrera Carbuccia and Robert Fremr allowed Bensouda to "recharacterise" the case under Regulation 55(2) of the regulations with respect to Ruto's individual criminal responsibility.
Recharacterisation under this regulation simply means changing the facts in a case.
In giving their decision, the judges took note of Ruto's concerns that allowing the 'recharacterisation' would be unfair to him. "But the Chamber does not consider that giving such notice in the present case would cause unfairness," the judge said.
They that since it was an early point in the trial proceedings and therefore, Ruto's defence team had "adequate opportunity" to adapt its strategy in view the change.
"The Chamber considers that the relief sought is sufficiently concrete that it can be granted in full conformity with the rights of the accused," said the judges.
The judges however made it clear that allowing recharacterisation does not mean amending the charges the two are facing.
Ruto is charged with indirect co-perpetration and crimes against humanity of murder, deportation and/or forceful transfer of population and persecution as per the Rome Statute. The judges rejected submissions by Ruto's defence team that allowing recharacterisation will unduly lengthen the trial process.
They said that if they rejected the recharacterisation at this stage of the trial, and grant it at a later stage of the proceedings, it may force some witnesses being recalled or conducting further investigation hence significantly extending the length of the trial.
In her application seeking permission to recharacterise the case, Bensouda argued that facts demonstrate that, in addition to "indirect co-perpetration" Article 25(3) (b) (c) and (d) may equally be applicable in Ruto's case.
The article allows the court to find an accused 'individually responsible and liable for ordering, soliciting or inducing the commission of a crime.'
It also allows the court to find an accused individually responsible and liable of facilitating the commission of a crime, aiding, abetting or otherwise assisting in its commission or its attempted commission, including providing the means for its commission.
The article further allows the court to find an accused individually responsible and liable of contributing to commission or attempted commission of a crime by a group of persons acting with a common purpose.
Ruto's defence team had argued that recharacterisation will result in inappropriate uncertainty as to the charges and considerably lengthen the trial process.
The defence team also argued that the prosecution is not willing to concede "they've got it wrong" and that its changed mode of liability wasdoomed.
The defence submitted that the prosecution should have either withdrawn the charges or sought to amend them instead of seeking relief under Regulation 55 of the Regulations.
The defence also argued that giving a general invocation of Regulation 55 "would not encourage diligent prosecution". The defence asked the judges to reject Bensouda application.
While allowing Bensouda's application, the judges noted that the defence would be given an opportunity to make full submissions on any recharacterisation, as required.
"These arguments would be given full consideration when the Chamber considers its final decision on whether to legally recharacterise the facts," ruled the judges.
Ruto is represented by lawyers Karim Khan, David Hooper, Essa Faal and Shyamala Alagendra. Sang on his part is represented by Kipchumba Kigen-Katwa and Caroline Buisman.