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

The following blog post summarizes Margaux Dastugue‘s note, The Faults in “Fair” Trials: An Evaluation of Regulation 55 at the International Criminal Court (48 Vand. J. Transnat’l L. 273 (2015)).

During the summer following my first year at Vanderbilt, I had the opportunity to work with a criminal defense team in The Hague in the Netherlands representing defendants at both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). This team, led by the esteemed Dr. Guénaël Mettraux, assisted in the trial preparation, representation and appeal processes for several defendants before the ICTY and ICC, in addition to consulting work before other international criminal tribunals and NGO’s. During the relatively brief period I spent working with this defense team, I was tasked with researching several procedural issues arising at the ICC that caused particular concern for criminal defendants and their fair trial rights. It was during the course of this research that I first encountered the unique procedural device at the ICC known as Regulation 55. This regulation, which was adopted by the judges of the ICC as part of the official Regulations of the Court, permits the judges to modify the charges against a criminal defendant at any time—either during or after the trial—if the judiciary decides it cannot convict the accused on the original charges confirmed before the commencement of the trial. 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 ICC. 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. This particular type of unilateral action by the judiciary to alter the charges against the accused would likely cause any law student educated under the common law tradition to question its precedence.

This initial research task inspired me to take a closer look at the use of Regulation 55 at the ICC and seek out potential limitations in an attempt to curb any unnecessary infringements on the affected defendants’ rights to a fair trial. This Note will provide a summary of the pre-trial processes, governing instruments and implementation of Regulation 55 at the ICC. Additionally, the Note offers a comparative perspective among civil and common law jurisdictions on criminal procedure and this regulation. More specifically, this Note highlights the regulation’s potential consequences for defendants’ rights to be informed of the charges, present a defense and be tried without undue delay through an analysis of the case against Germain Katanga. Lastly, this Note argues that 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 right to a fair and impartial trial.

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