Emerging Voices: Bemba as a Watershed in Judicial Discretion at the ICC–The Limits of Regulation 55

[David Benger is a student of Political Science at Brandeis University and International law at the Grotius Center for International Legal Studies at the University of Leiden. David can be reached at dabenger@gmail.com]

One of the central debates surrounding the International Criminal Court has been the battle between the rights of the accused and the interests of justice. This discussion has been central to the International Criminal Justice field from its inception. Many argued, for example, that the system of due process at the International Military Tribunal in Nuremberg was flawed and that the verdicts were simply rubber stamped Victor’s Justice. Others felt that a fair trial was more than the defendants deserved and that they should have been all summarily executed. International Criminal law has come a long way since then, but the core of the question still stands: Is it possible to have a fair trial when the stakes are so high? At the International Criminal Court, one of the pivot points of this debate has become a rule called Regulation 55 of the Regulations of the Court.

Regulation 55 is a rule which allows judges to provide notice that they may revise the charges presented in the Confirmation of Charges document in light of changed circumstances as the trial progresses. This is called “recharacterization,” and it has emerged as a highly controversial element of the Lubanga, Katanga-Ngudjolo, and Bemba trials. [For a more comprehensive analysis of the roots of Regulation 55, I strongly recommend the Open Society’s analysis].

Proponents of Regulation 55 have argued that it closes impunity gaps inherent in the new and relatively untested jurisprudential cannon of the ICC, while opponents argue that it infringes on the fundamental fair trial rights of the accused (namely, the right “to be informed promptly… of the charge” under article 67(1)(a) of the Rome Statute of the ICC).  In these historic first ICC cases, the contextual elaboration of such rules will have an impact on the shape of the Court’s work in all that follows. In this post, I argue that though Regulation 55 was originally drafted to serve the ICC’s mission of ending impunity, its application, in the case against Jean Pierre Bemba Gombo in particular, has exceeded the scope of its aims.

One of the primary motivations for creating Regulation 55 was the fear that “the Prosecutor will burden the Chambers of the Court with an overload of alternative or cumulative charges in order to avoid risk of acquittal” (C. Stahn). Essentially, there was apprehension about the possibility that an overzealous Prosecutor would ‘throw the book’ at an accused in order to increase the chances of conviction. This would lead to a lengthy, expensive, and taxing trial which might violate the accused’s right to a trial “without undue delay” (Article 67(1)(d) of the Rome Statute).

This rule has played a pivotal role in all three of the cases that have gone to trial at the ICC so far. In the Lubanga trial, the Victims’s Representative filed an application to recharacterize the charges against the accused to include charges of sexual slavery and inhumane treatment. The trial chamber initially accepted the application, but the Appeals Chamber rejected it, much to the chagrin of many victims’ groups and human rights NGO’s. Indeed, the Women’s Initiatives for Gender Justice, issued a memo in which they noted that an “outstanding feature [of the Lubanga case] has been the absence of charges for gender-based crimes in the case against the leader of a militia group widely known to have committed rape, sexual enslavement and other forms of sexualized violence.” Though the attempt by the Trial Chamber to provide notice of potential recharacterization was overturned by the Appeals Chamber, the invocation of Regulation 55 would play an important role in the cases to come.

Similarly, in the case against Germain Katanga and Mathieu Ngudjolo Chiu , when the charges were dropped against Ngudjulo Chiu, the Trial Chamber issued a notice of potential recharacterization of the charges under regulation 55. This time, however, when the defense appealed the decision, it was not overturned. Instead, it was punted back to the Trial Chamber. Indeed, the Appeals Chamber in Katanga argued not that the Regulation 55 re-characterization was appropriate, but that they could not rule against it until they saw more concrete evidence of the way it would be used; namely, they could not rule on the re-characterization definitely until the first instance judgment was issued.

In her dissent from the Katanga Appeals Chamber, Judge van den Wyngaert rejects the “too early to tell” argument in favor of clearer analysis and forethought on the part of the bench. She writes, “Notice Decision changes the narrative of the charges so fundamentally that it exceeds the facts and circumstances described in the charges.” Her point, essentially, is that while the precise nature of the re-characterization cannot be analyzed at this stage of the proceedings, she feels that as a member of that bench of judges, she can reasonably predict that the ultimate scope of the re-characterization will go beyond what is legally permissible under Regulation 55.

In the debate surrounding Regulation 55 in the case against Jean Pierre Bemba Gombo, the “too early to tell” argument is tested further. The procedural history in Bemba, in fact, clearly shows that the very charge that may be considered as per the Regulation 55 notice, had already been thrown out on several occasions both by the Pre-Trial Chamber and by the Trial Chamber. The re-characterization arguments have stemmed from an attempt by the OTP to alter Mr. Bemba’s mens rea from “knew” (meaning, he was aware of the crimes being committed by people under his command) to “should have known” (It was his duty as a commander to keep himself properly informed and his failure to do so makes him liable). In the June 15, 2009 Confirmation of Charges ruling, the Pre-Trial Chamber explicitly refused to confirm the “should have known” charge. On November 4, 2009, the Prosecution submitted a revised Document Containing the Confirmation of Charges, which once again included the “should have known” standard. On July 20, 2010, the Trial Chamber held that “allegation in paragraph 60 that Bemba ‘should have known’ of the crimes committed by MLC soldiers therefore exceeds the scope of the charges, and is to be deleted.” The Trial Chamber quite clearly noted that a “should have known” mens rea standard would exceed the scope of the charges. This conclusion alone should have precluded a Regulation 55 notice based on a mens rea re-characterization. After all, the Regulation 55 ruling in Lubanga unequivocally stated that legal re-characterizations must not exceed the facts and circumstances in the charging document.

Based on previous back and forth between the OTP and the Trial Chamber regarding the mens rea characterization, one can reasonably predict what this Regulation 55 notice is really all about. Furthermore, a strong argument can be made that due to the nature of this re-characterization, the accused’s fair trial rights would be under threat of serious violation. After all, the Trial Chamber has already ruled that a case under the “should have known” mens rea exceed the scope of the facts in the confirmation of charges. In light of previous interpretations of Regulation 55, this notice is very strictly prohibited from exceeding the scope of the facts in the confirmation of charges document. Therefore, a re-characterization under grounds that exceed the scope of the facts in the charges would very clearly fly in the face of the spirit of Regulation 55.

Furthermore, it is important to make the distinction between the concrete facts in the confirmed charge and the legal qualification given to those facts by the Prosecutor. While the facts and circumstances in the charges are binding on the Trial Chamber, the Prosecutor’s qualifications of those facts are not. According to Article 74 (2), the “facts and circumstances described in the charges” should be the only relevant consideration for a Trial Chamber’s decision. Therefore, by extension, any characterization given by the prosecutor in the document of charges is not binding on the chamber. However, the application of this distinction to the Bemba case is not a substantial factor in supporting the legality of a Regulation 55 notice. This is primarily because re-considering the case under an “owing to the circumstance of the time, should have known” standard would not only require an alteration of the characterization of charges, but a substantial reconsideration of the facts themselves.