'A Stick to Hit the Accused With': The Legal Recharacterization of Facts under Regulation 55
Carsten Stahn et al (eds), The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements (OUP, 2014 Forthcoming)
34 Pages Posted: 22 Dec 2013 Last revised: 23 May 2014
Date Written: December 20, 2013
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.
Keywords: Regulation 55, recharacterization, prosecutorial independence, fair trial, amendment of charges, Rome Statute, ICC, international criminal law
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