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'A Stick to Hit the Accused With': The Legal Recharacterization of Facts under Regulation 55Kevin Jon HellerUniversity of London - School of Oriental and African Studies (SOAS) 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) Abstract: 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 law Date posted: December 22, 2013 ; Last revised: May 23, 2014Suggested CitationContact Information
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