New Essay on the Legal Recharacterization of Facts at the ICC

by Kevin Jon Heller

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.

12 Responses

  1. Kevin,
    While I generally agree with you, the answer from many at the ICC (and in more civil law jurisdictions) will be that the objective of the ICC is to find the truth, and that this is a regulation necessary to achieve that: since Katanga should have known that the facts could be recharacterized, there is no real injustice – and any possible injustice is in any event cured by the fact that if an accused admits to something, it would be unfair to the victims to discount that. There are two ‘souls’ at the ICC, one adversarial and one much more attuned to the inquisitorial system, based on victims’ rights, and aiming at getting to the bottom of what happened not in the cases as such, but in the situations under scrutiny. Under this latter perspective, there should not really be a ‘prosecution’ and a ‘defence’ case, but rather the Judges calling the evidence they deem necessary to make sense of the case. I also find some facets of this approach problematic, but you have to admit that the debate is fascinating…

  2. I can’t think of anything more likely to bring international criminal justice into disrepute than judgments that effectively say the accused is proved to be guilty by evidence they tendered, including admissions made in their own testimony, but not guilty in the way that another chamber of this court thought they might be guilty, so they get off. That provides a route to a perverse verdict of acquittal which is so plainly obvious it is hard to imagine any accused not trying  to take advantage of it.
    We are all familiar with the general idea that an accused should be informed of the case they are to meet and that case should be properly particularised, but as in every system of criminal procedure that’s an idea that has to be applied pragmatically. And in practical terms, in a complex case (which all international prosecutions are) although the finding on the ultimate issue might be same, the reasoning process to reach that finding will often differ from how the case is presented in opening.

  3. Aldo,

    Your points are well taken, and I address them in the essay. It’s true that the ICC is a common law/civil law hybrid, but the civil law holds sway pre-trial and on appeal; the trial itself is still by and large the kind of adversarial trial you find in common law systems. As Judge Van den Wyngaert points out in her Lubanga dissent — and she herself, of course, comes from a civil law background — the Trial Chamber does not have a duty to find the truth under the Rome Statute; that duty is imposed specifically and solely on the prosecution. Moreover, the Trial Chamber has the right to hold an inquisitorial trial instead of an adversarial one if it so chooses, yet it has never exercised that right. That being the case, it needs to live with its choice of an adversarial trial, which includes accepting that it is the prosecution’s right to select the charges and its obligation to prove them.

  4. He did it.   And he says he did it.   I can’t think of a better situation than a criminal being nailed on the basis of what he himself says.   So, case closed; off to the gallows with him.  
    Kevin, you write:
    “it needs to live with its choice of an adversarial trial”.
    Would you please explain, in a bit more detail, why.   This bit:
    “it is the prosecution’s right to select the charges and its obligation to prove them”
    is true, but the statute allows the judges to do what they have proposed to do.  One may be unhappy with that, but, surely that, of itself, does not mean that the judges have acted “improperly”.
    I agree with Rob.   Given what the court is intended to do, it would be “unhelpful” for the court to say:
    “He was charged with these crimes, but we are unable to find him guilty of those; so we have to let him go.   True, he confessed to these other crimes, but nobody charged him with those; so there you have it”.

  5. Also, the provision according to which ” The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth” seems to demonstrate that the focus of Chambers might be conceived as being that of looking for the truth – the rights of the accused have to be respected, but I can see why the focus of many judges is different than what Judge Van der Wyngaert says….

  6. Aldo,

    Actually, I think that provision simply makes my point: although the TC is entitled to request the evidence it needs to adjudicate the confirmed charges — a power far from unknown in the common law — it does not have the right to change the charges during or after trial. Notice that the drafters of the RS specifically included a provision permitting the TC to request more evidence, but did not include a provision permitting it to amend the charges after trial begins. Moreover, because of the insistence of common-law states, they specifically required the PTC to ask (not demand) the prosecution to amend the charges when it appeared during the confirmation hearing that another crime had been committed.

    The Regulation 55 issue is a simple one: the judges have tried to smuggle a power through the backdoor that was denied them through the front door. And, of course, they have been successful, for one basic reason: the same judges who wrote Regulation 55 have decided challenges to its legitimacy. That conflict alone demands a very restrictive interpretation of the Regulation.

  7. Kevin,
    While I agree with you on the substance, I am also willing to consider the opposite interpretation: that if the RS allows Judges to receive all and any evidence to ascertain the truth, then the TC is not bound by the charges originally confirmed, when these do not conform to the “truth” according to a majority of the Judges. While the RS does not explicitly contain this power, many civil law Judges (note that Judge van der Wyngaert was never really a Judge in her system) would assume that this flows from the general provision on the truth-seeking mission and the admissibility of any evidence related to that. Or else, the provision would have been drafted to say “the determination of the truth within the charges confirmed” or something to that effect. So, the fact that common law countries allowed this provision to be inserted without linking it to the charges confirmed, allows a pretty good argument that the accused is on notice of what the TC can do.

  8. Rules of court are often drafted by judges. Were it otherwise, with rules being drafted by Ministers or other executive officers, the court would effectively no longer be in control of its own processes. Now, ideas about separation of powers and the inherent jurisdiction of superior courts don’t necessarily translate from constitutional states to international bodies, but in light of how run of the mill it is for judges to both enact rules of court and apply them, the apparent assertion of some sort of “conflict” (of interest, I assume) appears to me to go nowhere.

  9. Aldo,

    The common-law states fought the concept of the Pre-Trial Chamber itself, only relented when other states agreed not to give the Pre-Trial Chamber any authority to modify the charges prior to trial, and rejected a number of proposals that would have permitted the Trial Chamber to amend the charges proprio motu. So you really believe that they accepted the Trial Chamber’s authority to do exactly what they did not want it to do by not rejecting a provision that is limited to evidence and says nothing about new charges? I find that a very problematic interpretive assumption.

  10. Probably right, Kevin. But if that is shared by everybody or most states, amidst the outrageous changes passed last month, states would have added the Rule that no change to the charges can take place after the beginning of trial – but there was not even a proposal to that effect, as far as I know. Looks like states changed their mind and think that this is now a good idea, or else they would have modified the Rules so as to render the regulations illegal.
    I think that the reasons to request the OTP to amend the charges before you have seen the evidence are very different from the ones you refer to: the TC simply does not have the knowledge before the trial starts. Once the trial starts, the judges can really go and look for the truth, and in that process require new charges to tally with what really happened. So, the explanation for no power to modify charges before trial is very different…

  11. Not one, but two important decisions in this field have just emanated from the ICC (trial chamber V(a):
    and appeals chamber: ) exactly within the ambit of this topic, on 12th and 13th December 2013.

    I wonder why none of them so far has been discussed in this thread. 🙁

  12. The essay was finished before the new decisions. Thanks for mentioning them.

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