Regulation 55 and the Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

It’s becoming an old story: the Pre-Trial Chamber (PTC) rejects a charged mode of liability after a confirmation hearing, so the OTP simply asks the Trial Chamber (TC) to give the defendant notice that it will consider convicting him on the basis of the rejected mode anyway. This time, the defendant is Laurent Gbagbo. The OTP initially alleged that Gbagbo is responsible for various crimes against humanity on the basis of Art. 25 in the Rome Statute — indirect co-perpetration; ordering, soliciting or inducing; and otherwise contributing to the commission of crimes — as well as command responsibility and superior responsibility. Following the confirmation hearing, the PTC confirmed all of the modes of liability in Art. 25, but declined to confirm command and superior responsibility, because those modes “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.” Undeterred, the OTP then asked the TC to invoke Regulation 55:

The Office of the Prosecutor (“Prosecution”) requests that Trial Chamber I (“Chamber”) give notice to the Parties and participants pursuant to regulation 55(2) of the Regulations of the Court (“RoC”) that the legal characterisation of the facts confirmed by Pre-Trial Chamber I (“Pre-Trial Chamber”) may be subject to change to accord with a further alternative form of participation of the Accused Laurent Gbagbo (“Gbagbo”): superior responsibility under article 28(a) and (b) of the Rome Statute (“Statute”) for all crimes (“Request”).

I have explained at length in this article why the Rome Statute — Art. 61 in particular — does not permit the Trial Chamber to convict a defendant on the basis of an unconfirmed mode of liability, so there is no need to repeat the argument here. Suffice it to say that the OTP’s request, which will almost certainly be granted by the TC (if past practice is any guide), continues the confirmation hearing’s long, slow slide into irrelevance. Given how the TC and Appeals Chamber have (wrongly) interpreted Regulation 55, the confirmation hearing actually “confirms” nothing; it just provides suggestions to the TC concerning how it might choose to convict the defendant. If the TC wants to go a different direction and convict the defendant on the basis of an unconfirmed mode of participation, no problem. It can simply “recharacterize” the facts and circumstances proven at trial.

Discerning readers might wonder how a defendant is supposed to prepare his defence in such a situation. Isn’t the entire point of the confirmation hearing to inform the defendant of the crimes and modes of liability he will have to rebut during trial? Yes — which is the fundamental problem with Regulation 55 as the judges have interpreted it. Because of their interpretation, defendants now have only two potential strategies at trial: (1) prepare a defence to every possible legal characterization of the facts and circumstances in the charge sheet — all possible crimes and all possible modes of liability; or (2) ignore the law entirely and focus solely on rebutting the facts and circumstances themselves. The first strategy is effectively impossible — and it’s very unlikely the TC would even let a defendant do it. (“Sorry, you have to pick one or two theories of the case — even though we can pick any theory we want down the track.”) And the second strategy is inconsistent with the nature of the adversarial trial contemplated by the Rome Statute. Defendants are (supposed to be) charged with specific crimes on the basis of specific modes of liability; they are not charged with bare facts and circumstances.

It’s a shame that the ICC’s judges have allowed Regulation 55 to metastasise into the ultimate judicial hammer — a one-size-fits-all tool for saving the OTP from its own poor charging decisions and ineffective trial advocacy. (See, e.g., Katanga.) But, of course, it’s not a surprise. After all, the judges wrote the Regulation themselves.

4 Responses

  1. Thanks for an interesting post Kevin . It should only be noticed :

    1) Judges, or litigators (very skillful) are best for writing and drawing rules of evidence and procedure. This is not a game !! one needs huge experience for it . Writing general provisions of law in one thing, rules, well, this is a different animal, vastly different .

    2) Typically , there are sometimes problems of discord between facts , and charges , or questions of law . It can occur, and it does !! why is that ?? very complicated !! yet , some judiciaries , solve it by substituting sentence and charges . Means , you may accuse someone , on different charges , upon same facts ( as appear in the indictment anyway ) but , then : Sentence , can’t be more aggravated than original facts on indictment .

    3) Yet , it seems that the ” Roman legislator ” doesn’t provide such solution , but rather drawing charges or re- processing everything ( article 61 of the statute ) . But , I think that the judges , can improvise rule of such (51 (3) rules of evidence of the statute ) since :

    4) If the punishment is aggravated , then: one may argue that it’s beyond the jurisdiction of the sub – legislator, and only up to the legislator (state parties) but, it not exceeding original charges in the indictment, it is within the jurisdiction of judges , simply a Question of how general and substantial is the norm or legislation, one may argue.


  2. Just to clarify or add something in clause 2 of my comment above :

    The accused , should anyway be given of course , fair chance to defend himself in light of new configurations , not only holding original sentences . Thanks

  3. Another correction for my first comment :

    Mistakenly written :

    ” as appear in the indictment ….” while shoud be :

    Even if don’t appear originally in the idictment ( the facts ) .


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