I’ve just published on SSRN the draft of my upcoming chapter in the THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES (William A. Schabas, Niamh Hayes, Yvonne McDermott and Maria Varaki, eds.). In it, I consider the powers of the various organs of the ICC in defining, amending and recharacterizing the charges, especially the infamous Regulation 55 which was at the heart of the controversy surrounding the attempt by the Trial Chamber in Lubanga to introduce new charges of sexual violence during the trial and which I commented on here and here.
Here is the abstract:
One issue that has come to the fore in the early practice of the International Criminal Court (ICC) is the question of who determines the content of the charges against an accused individual and the scope and timing of any amendments that are to be made. The importance of this issue is threefold. First, having a clear framework for the amendment of charges is important from the point of view of the accused. If he or she is to have adequate time for the preparation of the defence, it is important that there be some certainty as to the charges resting against him or her, without running the risk of multiple amendments. Second, the issues are illustrative of the more general concern in the ICC Statute to achieve a balance between legal certainty and judicial efficiency. The former requires that as few amendments as possible be allowed the more advanced the proceedings are, whereas the latter opens to door to some flexibility to avoid acquittals based on a faulty determination of the charges. Third, as will be illustrated in the course of the chapter, it more generally highlights the difficult balance of power to be struck between various organs of the Court, not just between the Prosecutor and the Chambers, but also between the Pre-Trial Chamber and the Appeals Chamber, and begs the question as to whether the judges of the ICC ought to have the final say in matters that might seem to relate more to a legislative rather than judicial function.
Please don’t hesitate to circulate, and all comments are welcome!