The faults in "fair" trials: an evaluation of regulation 55 at the International Criminal Court.

AuthorDastugue, Margaux

ABSTRACT

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.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. The International Criminal Court (ICC) B. Pretrial Process and Confirmation Hearing C. Governing Instruments of the International Criminal Court III. COMPARATIVE PERSPECTIVE ON CRIMINAL PROCEDURE AND REGULATION 55 IV. USE OF REGULATION 55 IN THE ICC A. General Application of Regulation 55 B. Aims of Regulation 55 V. REGULATION 55 IN THE KATANGA CASE A. Trial Chamber II Invokes Regulation 55 During Deliberations after the End of Trial to Modify Mode of Liability B. Appeals Chamber Upholds Trial Chamber's Use of Regulation 55 C. Trial Chamber Convicts on Modified Charges after Closing of Trial VI. CRITICISMS OF REGULATION 55 A. The Right to Be Informed of Charges B. The Right to Prepare Defense C. The Right to Trial without Undue Delay D. Judicial Expansion of Power at the Expense of the Prosecution VII. SUGGESTED PROPOSALS A. A Strict Interpretation of the Changes for Which Regulation 55 May Be Invoked B. A Strict Limit on When Regulation 55 May Be Invoked C. A More Transparent, Extensive Pretrial Process VIII. CONCLUSION I. INTRODUCTION

In June 2004, the International Criminal Court (ICC) began an investigation into the Ituri Province of the Democratic Republic of Congo; conflict over natural resources and land between the Hema and Lendu ethnic groups had ravaged the province for years. (1) After finding sufficient evidence to suggest that he had commanded a Lendu militia in a targeted attack against Hema civilians in the village of Borgoro, the Prosecutor of the ICC opened a case against Germain Katanga. (2) The Prosecutor charged Katanga with indirect co-perpetration of several war crimes and crimes against humanity under Article 25(3)(a) of the Rome Statute. (3) After the Pre-Trial Chamber confirmed these charges in September of 2008, Katanga began preparing his defense against those charges. (4) During over two years of trial, Katanga testified and defended himself against these charges of indirect co-perpetration. (5) Six months after the closing arguments, the Trial Chamber determined it did not have evidence sufficient to convict Katanga of indirect co-perpetration and notified the parties that it would consider a re-characterization of the charges against Katanga pursuant to Regulation 55. (6) Nearly a decade after the initial investigation, and three years after the defense rested on the initial charges, the ICC convicted Katanga on five counts of a lesser mode of liability. (7) Such use of Regulation 55 to change the legal characterization of charges is not unique to Katanga. (8)

The judges of the ICC increasingly rely on Regulation 55 to avoid acquitting defendants. (9) However, this reliance has significant consequences for a defendant's right to a fair and impartial trial. (10) As evidenced by international customary law and the Rome Statute governing the ICC, (11) there are few judicial foundations more significant than the defendant's fair trial rights. The ICC must recognize and ensure fair trial rights in order to maintain its legitimacy. (12) If the judges of the ICC continue to infringe upon both the fair trial rights of defendants and the statutorily proscribed power of the Prosecutor by re-characterizing the charges against the defendant at various stages in the proceedings, the integrity of the ICC is in jeopardy. (13) This Note will evaluate the impact of Regulation 55 on fair trial rights in the ICC and propose several procedural modifications to ensure the legitimacy of the ICC.

Part II details the relevant Rome Statute articles and ICC Regulations at issue in this analysis. It also presents the historical development of these governing documents within the larger context of the ICC's procedural instruments and describes certain pretrial processes critical to the analysis. Part III presents a comparative examination of criminal procedure, emphasizing the key distinctions between common law and civil law traditions on particular issues relevant to Regulation 55 and the ICC. Part IV chronicles the most recent ICC jurisprudence relating to Regulation 55 through an analysis of the Katanga case. Part V details the major criticisms of Regulation 55 and its impact on due process rights, namely a defendant's right to be informed of charges, his right to prepare and organize a defense, and his right to trial without undue delay. Lastly, Part VI presents several proposals regarding the use of Regulation 55 by the ICC Trial Chambers that would serve to emphasize the role of efficient pretrial processes, minimize the use of Regulation 55, and, most importantly, ensure the effective protection of the due process rights of the accused.

  1. BACKGROUND

    1. THE INTERNATIONAL CRIMINAL COURT (ICC)

      In 2002, 122 countries ratified the Rome Statute and established the ICC as the first permanent treaty-based international criminal court to end impunity for the perpetrators of "the most serious crimes of concern to the international community," namely genocide, war crimes, and crimes against humanity. (14) The Rome Statute governs the ICC. (15) An investigation by the ICC Prosecutor may be initiated by referral from any of the 122 ratifying countries, referral from the United Nations Security Council, or authorization from a Pre-Trial Chamber upon request by the Prosecutor. (16) The judicial organ of the ICC is composed of three divisions: Pre-Trial, Trial, and Appeals Divisions. (17) The Pre-Trial Division manages the first stage of judicial proceedings, which includes authorizing investigations, authorizing arrest warrants or summons to appear, and conducting a hearing to confirm charges. (18) At the end of the confirmation hearing, the case will be assigned to a Trial Chamber for trial. (19) The judges of the Trial Chamber conduct the subsequent proceedings and determine the guilt or innocence of the accused. (20) Both the Prosecutor and the defendant have the power to appeal decisions made during the course of proceedings in both the Pre-Trial and Trial Divisions to the Appeals Division. (21)

    2. Pretrial Process and Confirmation Hearing

      Following the issuance of an arrest warrant and initial appearances before the Pre-Trial Division, the defendant first learns the full details of the nature, cause, and content of the charges as well as the legal characterization of facts as presented by the Prosecutor during the pretrial confirmation hearing. (22) The ICC has held eight confirmation hearings in its first ten years of existence, some lasting up to twenty days while another only four. (23)

      The confirmation hearing provided for in Article 61 serves as a mechanism by which the Pre-Trial Division determines whether there are "substantial grounds to believe that the person committed each of the crimes charged." (24) The Pre-Trial Division must evaluate and assess the evidence in relation to the crimes and modes of liability charged by the Prosecutor. (25) The Pre-Trial Division permits both the Prosecution and defense to present evidence and examine witnesses, although the burden of proof remains with the Prosecution. (26) On the basis of the confirmation hearing, the Pre-Trial Division must determine whether there are "substantial grounds to believe" the defendant committed each of the crimes charged, which generally is thought to include the mode of liability, or form of participation, associated with each crime. (27) However, neither the Rome Statute nor the Rules of Procedure and Evidence defines the criteria of "substantial grounds to believe." (28) In The Prosecutor v. Thomas Lubanga Dyilo, (29) the Pre-Trial Division reviewed international human rights jurisprudence, including European Court of Human Rights judgments and those of the ad hoc tribunals, to conclude that the Prosecution must present concrete proof to support its specific allegations. (30) The confirmation of Germain Katanga's charges followed the Lubanga interpretation of the standard. (31)

      According to the Rome Statute, at the end of the confirmation hearing, the Pre-Trial Division determines the next stage of the trial. (32) The Pre-Trial Division has one of three options at the close of the hearing: (1) confirm the charges and submit the defendant to a Trial Chamber for trial, (2) decline to confirm the charges, or (3) adjourn the hearing and request the prosecutor to provide further evidence or consider amending a charge. (33) Once the Pre-Trial Division has confirmed charges against a defendant, the Pre-Trial Division refers the case to a Trial Chamber for trial. (34) Once charges are confirmed, the parties traditionally begin their initial preparations for trial relying on the confirmation hearing decision. (35)

    3. Governing Instruments of the International Criminal Court

      Several instruments, including the Rome Statute, (36) Rules of Procedure and Evidence, (37) Regulations of the Court...

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