'A Stick to Hit the Accused With': The Legal Recharacterization of Facts under Regulation 55
Kevin Jon Heller
SOAS, University of London
December 20, 2013
Carsten Stahn et al (eds), The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements (OUP, 2014 Forthcoming)
Regulation 55 was one of 126 regulations adopted by the judges of the International Criminal Court on 26 May 2004. It permits a Chamber to legally recharacterize the facts contained in the prosecution’s Document Containing the Charges, subject to certain important procedural constraints. This Chapter provides a comprehensive critique of Regulation 55, which has already had a significant impact on at least three cases: Lubanga, Bemba, and Katanga. Section I argues that the judges’ adoption of Regulation 55 was ultra vires, because the Regulation does not involve a ‘routine function’ of the Court and is inconsistent with the Rome Statute’s procedures for amending charges. Section II explains why, contrary to the practice of the Pre-Trial Chamber and Trial Chamber, Regulation 55 cannot be applied either prior to trial or after trial has ended. Finally, Section III demonstrates that Pre-Trial Chamber and Trial Chamber have consistently applied Regulation 55 in ways that violate both prosecutorial independence and the accused’s right to a fair trial.
Number of Pages in PDF File: 34
Keywords: Regulation 55, recharacterization, prosecutorial independence, fair trial, amendment of charges, Rome Statute, ICC, international criminal lawAccepted Paper Series
Date posted: December 22, 2013 ; Last revised: January 7, 2014
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