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...
This Note recommends restricting the time and manner in which Regulation 55 may be invoked, while simultaneously increasing the transparency of the ICC's pretrial process. It recommended a number of proposals for the ICC that would serve to more effectively protect the fair trial rights of the accused while still permitting the court to achieve its objectives and maintain legitimacy. The ICC, while still in its early stages as the first international court of its kind, must seriously reevaluate its current procedural framework to mandate the protection of such fundamental trial rights in order to sustain legitimacy and create its legacy.
The Faults in "Fair" Trials: An Evaluation of Regulation 55 at the International Criminal Court,
48 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol48/iss1/6