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Part V Fairness and Expeditiousness of ICC Proceedings, 39 ‘A Stick to Hit the Accused With’: The Legal Recharacterization of Facts under Regulation 55

Kevin Jon Heller

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 06 February 2023

Prosecution — Crimes against humanity — Right to fair trial — Defences — Modes of liability

This Chapter provides a comprehensive critique of Regulation 55 at the ICC which regulates the legal characterization of facts in the ICC context. Regulation 55 has been applied in multiple cases at the ICC, including pre-trial and trial (e.g. Katanga and Ngudjolo Chui). This contribution argues that the 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. It 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, it demonstrates that the Pre-Trial Chamber and Trial Chamber have applied Regulation 55 in ways that undermine both prosecutorial independence and the accused’s right to a fair trial.

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