New Essay on the Legal Recharacterization of Facts at the ICC
I have posted a new essay on SSRN entitled — borrowing a phrase from a dissent written by Judge Van den Wyngaert — “A Stick to Hit the Accused with”: The Legal Recharacterization of Facts Under Regulation 55. The essay is forthcoming in a book on the ICC that Carsten Stahn is editing for OUP. Here is the 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 the 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.
It’s difficult to overstate how problematic Regulation 55 is. Katanga is perhaps the best example: the defence built its entire strategy around rebutting the idea that Katanga was responsible for the charged crimes as an indirect co-perpetrator, in keeping with the OTP’s allegations and the Pre-Trial Chamber’s assurance that questions of complicity were thereby moot. Katanga testified on his own behalf at trial, admitting that he had known about and perhaps indirectly contributed to his former subordinates’ crimes, but denying he intended to commit the charged crimes or had control over them (the material elements of indirect co-perpetration). The Trial Chamber then notified the defence six months after trial was over that it intended to also consider Katanga’s responsibility on the basis of common-purpose liability — relying to a significant extent on Katanga’s own testimony. And the Appeals Chamber thought that was just fine.
I could go on — but if you’re interested, you should just read the essay. You can download it here. Comments most welcome, as always.