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
Edited By: Carsten Stahn
- 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.