The Faults in “Fair” Trials: An Evaluation of Regulation 55 at the International Criminal Court

Despite its reputation as a “provision of an exceptional nature,” Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time—either during or after the trial—if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC’s seven trials has demonstrated that the ICC cannot effectively safeguard a defendant’s fundamental trial rights: the right to be informed of charges, the right to present a defense, and the right to be tried without undue delay. In order to protect these rights, it is necessary for the judges of the ICC to adopt a strict interpretation of the Regulation and refrain from invoking it beyond the earliest stages of the proceedings. With its legitimacy and legacy on the line, the ICC cannot afford to continue seeking convictions at any cost—especially when this comes at the expense of a defendant’s trial rights.