Heller: 'A Stick to Hit the Accused with': The Legal Recharacterization of Facts Under Regulation 55

Kevin Jon Heller (SOAS, Univ. of London - Law) has posted 'A Stick to Hit the Accused with': The Legal Recharacterization of Facts Under Regulation 55 (in The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements, Carsten Stahn et al. eds., forthcoming). Here's 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 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.