New War Crimes Research Office Report Examines Regulation 55 and the Rights of the Accused

FOR IMMEDIATE RELEASE

Washington, D.C., Nov. 22, 2013 —The War Crimes Research Office (WCRO) at American University Washington College of Law launched a new report on the International Criminal Court (ICC), Regulation 55 and the Rights of the Accused at the International Criminal Court.   

In nearly every case that has reached trial before the International Criminal Court (ICC) to date, a significant amount of time and litigation has been devoted to questions regarding the potential use by the Trial Chamber of Regulation 55 of the Regulations of the Court. This is a provision that permits the Chamber to convict an accused of a crime other than that with which he was originally charged by the Prosecution, or to base its conviction on a different mode of liability than originally charged, subject to certain conditions. Notably, one of the rationales behind the adoption of Regulation 55 by the ICC was that it would render the proceedings more efficient by obviating the need for the Prosecution to charge alternative or cumulative charges at the start of trial. However, as described in detail in this report, Regulation 55 has in fact resulted in substantial inefficiencies. Even more significantly, the use of the regulation under certain scenarios raises serious questions regarding the Trial Chamber’s ability to protect the rights of the accused to be informed of the charges against him, even with the safeguards spelled out in the regulation, as seen in the Prosecutor v. Germain Katanga case described in this report.

In light of these concerns, this report offers recommendations aimed at limiting the availability of Regulation 55 so as to ensure that the rights of the accused to a fair and expeditious trial are safeguarded while maintaining the Trial Chamber’s authority to recharacterize in exceptional circumstances. In addition, the report advocates a more flexible approach to charging on the part of the Prosecution and the Pre-Trial Chambers in the hope that such changes may reduce the need for a Trial Chamber to invoke Regulation 55 after trial proceedings have commenced.

The report is the seventeenth in the WCRO’s ICC Legal Analysis and Education Project, an initiative aimed at producing public, impartial, legal analyses of critical issues raised by the ICC’s early decisions. The ICC Legal Analysis and Education Project benefits from the insights of an Advisory Committee comprised of the following experts in international criminal law:

  • Judge Mary McGowan Davis, former Acting New York State Supreme Court Judge and Board Member of the International Judicial Academy and the American Association for the International Commission of Jurists;
  • Justice Unity Dow, Commissioner of the International Commission of Jurists, member of the ICJ's Executive Committee and former judge of the Botswana High Court;
  • Siri Frigaard, Chief Public Prosecutor for the Norwegian National Authority for Prosecution of Organized and Other Serious Crimes and former Deputy General Prosecutor for Serious Crimes in East Timor;
  • Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda;
  • Chief Justice Phillip Rapoza of the Massachusetts Appeals Court and former Chief International Judge serving as Coordinator of the Special Panels for Serious Crimes in East Timor;
  • Juan Mendez, UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and former Special Advisor on Prevention to the Prosecutor of the ICC.

For a hard copy of the report or more information, contact the War Crimes Research Office at warcrimes@wcl.american.edu, or +1 (202) 274-4067. The reports are also available online at http://www.wcl.american.edu/warcrimes/icc/icc_reports.cfm.

###