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A Closer Look at Regulation 55 at the ICC

On March 27, a majority of the Appeals Chamber of the International Criminal Court (ICC) ruled that the Trial Chamber could change the charges against Germain Katanga. However, the Appeals Chamber noted, if the Trial Chamber does change the charges, it must ensure that Katanga’s trial remains fair.

This post will look deeper into the issue of Trial Chambers using Regulation 55 to change charges during ICC trials and why this has become such a contentious issue. It will also discuss the dissenting opinion of Appeals Chamber Judge Cuno Tarfusser in the Katanga trial, and how the ICC’s approach is different from other international criminal tribunals.

Regulation 55: A Controversial Issue at the ICC

Regulation 55 has been a major issue in many of the ICC’s first trials. In addition to the issue in Katanga, the regulation also arose in the Thomas Lubanga trial and is currently an issue in the Jean-Pierre Bemba Gombo trial.

Regulation 55 of the Regulations of the Court provides that, in its final judgment, a “Chamber may change the legal characterization of facts to accord with the crimes […] or to accord with the form of participation of the accused […] without exceeding the facts and circumstances described in the charges and any amendments to the charges.” This means that trial chambers can change how they consider evidence from a legal point of view, even if that is not exactly how the accused was charged. For example, if an accused is charged with directly committing a crime, but the evidence suggests she aided and abetted the crime, the Trial Chamber can convict her for aiding and abetting even if that was not in the original charges.

However, trial chambers must notify the parties if they are considering such a change. The Regulation states that if, “at any time during the trial it appears to the Chamber that the legal characterization of facts may be subject to change,” the chamber must “give notice to the participants” that it might change the nature of the charges in its judgment. The chamber must also give the participants the opportunity to make submissions on the issue. Furthermore, the chamber must ensure that the accused has “adequate time and facilities for the effective preparation of his or her defense” and, “if necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute.”

The pretense behind the regulation is to promote judicial efficiency and allow the trial chamber to fill impunity gaps that might arise if the prosecution’s charges do not match the facts heard at trial. It is meant to avoid overburdening the judges with cases involving cumulative or alternative charges, allowing for more efficient, timely trials. It is also meant to avoid situations where an accused is acquitted even though there is proof beyond a reasonable doubt that he or she has committed a crime within the jurisdiction of the court.

However, critics claim that it does not comport with other provisions of the Rome Statute and allows for judges to improperly play the role of the prosecutor. Specifically, critics argue that it contravenes the power of the prosecutor to amend charges under Article 61(9) of the Rome Statute. Defense teams have also argued that the way it has been used by trial chambers violates fair trial rights.

Regulation 55 in the Lubanga and Bemba Trials

In the Lubanga trial, a majority of the trial chamber, Judge Fulford dissenting, considered changing the legal characterization of facts in that case in light of evidence heard during trial and submissions by legal representatives of the victims. The majority considered adding new charges against Lubanga based on evidence of sexual violence, even though the pre-trial chamber had only confirmed charges for the crimes of recruiting and conscripting child soldiers. The Appeals Chamber overturned that decision because the proposed change went beyond the facts and circumstances described in the charges. The Appeals Chamber held that no matter when during the trial the trial chamber wanted to make changes to charges under Regulation 55, the changes were limited to the facts and circumstances of the charges confirmed by the pre-trial chamber.

In the case against Jean-Pierre Bemba Gombo, the judges of Trial Chamber III invoked Regulation 55 a few months after the defense had started to present its case. The chamber gave the parties notice of a potential change to the alleged mode of liability. Bemba was initially charged with command responsibility for crimes against humanity and war crimes committed in the Central African Republic by troops allegedly under his control, the Movement for the Liberation of Congo (MLC). Originally, he was charged with failing to take action to prevent or punish the crimes he allegedly “knew” his troops committed. The judges, however, gave notice under Regulation 55 that they may change the required form of knowledge. Essentially, they may change the requirement that he “knew” about the crimes to a lower requirement that he “either knew, or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.”

The Bemba defense objected, arguing that the change would require six to nine months of additional investigation and time to identify and interview potential witnesses. The trial chamber therefore suspended the trial for two and a half months in order to provide adequate time and facilities to prepare for the potential change. The defense sought leave to appeal that decision on the basis that the chamber’s use of Regulation 55 was improper and violated Bemba’s fair trial rights. However, the trial chamber did not allow the defense to file their appeal.

Bemba’s defense then informed the court that it wished to recommence the trial as soon as possible. The defense claimed that it would not seek to recall witnesses, call additional evidence, or conduct additional investigations. According to the defense, without a formal decision to amend the charges or render a final decision about the potential change, the chamber had no legal authority to prosecute Bemba under the new mode of liability. The trial chamber granted the motion to recommence the trial, finding that the defense had waived the opportunity to conduct further investigations. The court also noted that there was no requirement to issue a formal decision about the potential changes to the charges. According to that chamber, the potential change would only be applied in the final trial judgment, not before.

Regulation 55 in the Katanga Trial

In the Katanga case, the proposed change also relates to the alleged mode of liability but came very late in the trial proceedings. The prosecutor originally charged Katanga and Mathieu Ngudjolo with three crimes against humanity and seven war crimes allegedly committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC). They were accused under Article 25(3)(a) of having committed the crimes through “indirect co-perpetration,” where the Katanga and Ngudjolo allegedly used hierarchical organizations (the Ituri Patriotic Resistance Force (FRPI) and the Nationalist and Integrationist Front (FNI), respectively) to carry out the crimes according to Katanga and Ngudjolo’s common plan to wipe out Bogoro.

Acting under Regulation 55 of the Regulations of the Court, the trial chamber majority notified the parties that it would likely change Katanga’s mode of liability to “common purpose” liability under Article 25(3)(d)(ii). Due to this development in the case against Katanga, the judges severed the two cases and acquitted Ngudjolo on December 18, 2012. The prosecution has appealed his acquittal.

There are important differences between the original charges and the proposed change. The specific mode of liability the Judges are considering is Article 25(3)(d)(ii), which criminalizes intentionally contributing to a crime committed by a group acting with a common purpose, knowing that the group intended to commit the crime. The new mode of liability would apply to all crimes except for those relating to the use of child soldiers.

In short, Katanga could be guilty if the judges find that he contributed in some way to the attack on Bogoro and he knew his contribution would help facilitate the commission of crimes. This is different from the original charges, which allege that Katanga himself intended the crimes as part of a common plan to wipe out Bogoro, as opposed to intending to contribute to actions of others he knew would commit crimes.

It is possible that the judges do not consider that there is sufficient evidence of a common plan between Katanga and Ngudjolo—especially given that the trial chamber acquitted Ngudjolo because the prosecution had failed to prove he was the commander of the Lendu forces that attacked Bogoro. However, during his testimony, Katanga spoke about his role as a coordinator in preparing the attack on Bogoro. Katanga claimed the aim of the attack was to remove the UPC soldiers based there, not to “wipe out” the village. He claimed that the attack was carried out by local armed groups linked to the APC and facilitated by the government of the DRC. If the charges are changed, the judges might consider whether this coordinating role would be sufficient to convict him under the new “common purpose” liability.

The Katanga defense submitted that the timing and nature of the change would violate Katanga’s fair trial rights and appealed the decision. The majority of the Appeals Chamber upheld the trial chamber’s use of Regulation 55 but noted some concerns with how implementation of the change might affect Katanga’s fair trial rights depending on how the trial chamber conducts additional proceedings. In particular, the Appeals Chamber majority was concerned about violating Katanga’s rights to a trial without undue delay, given the late timing of the trial chamber decision.

According to the Appeals Chamber majority, the trial chamber can give notice “at any time during the trial” without limit, as long as it provides the parties with the opportunity to make oral and written submissions about the proposed change at an appropriate stage of the proceedings. The Appeals Chamber majority noted that the trial chamber may not realize the need for the change until it is deliberating its final judgment, especially considering the complexity of cases that come before the ICC. The majority stated that if the trial chamber could not invoke Regulation 55 at the deliberations stage, it would have to acquit an accused even if there was evidence that clearly established his guilt under a different legal characterization of the facts.

One of the main purposes of Regulation 55 is to close accountability gaps, the Appeals Chamber majority recalled. The majority found that changes from allegedly committing the crimes himself to merely being an accessory to crimes will always necessarily involve changing the characterization of the accused’s role. It would defeat the purpose of Regulation 55 if a trial chamber could not make these changes.

The Appeals Chamber majority did highlight some concerns, however. In particular, the majority noted that it did not know the precise nature of the re-characterization or the evidence the trial chamber would use. The Appeals Chamber majority also noted that the trial chamber would need to assess for itself whether making the re-characterization at this stage would violate Katanga’s fair trial rights, in particular about whether he was deprived of mounting a defense against the new mode of liability.

According to the majority, it was premature to assess whether Katanga’s right to be tried without undue delay has been violated because it cannot yet judge how much time will be added to the trial because of the re-characterization. Regarding Katanga’s right to be informed of the charges against him in detail, the Appeals Chamber majority noted that the Trial Chamber’s decision did not provide much detail about the facts it would rely on if the mode of liability is changed. However, it said that the trial chamber must decide for itself how much additional information it needs to give Katanga in order to protect his fair trial rights.

In a partially dissenting opinion, Judge Cuno Tarfusser strongly disagreed with the Appeals Chamber majority about the application of Regulation 55 to the type of change proposed and about the majority’s holding that the change would not violate Katanga’s fair trial rights. Judge Tarfusser agreed with the majority about the timing of the change.

According to Judge Tarfusser, Regulation 55 should only be applied in exceptional situations and should be interpreted narrowly in order to avoid violations of fair trial rights of the accused. In his view, the only time Regulation 55 should be triggered is when there is a change in the mode of liability between Article 25 (individual criminal responsibility) and Article 28 (command or superior responsibility).  Changing the mode of liability from one sub-section of Article 25 to another, he argued, is not actually changing the legal characterization of facts for the purposes of Regulation 55. Changes within Article 25 are merely changes as to the degree of an accused’s participation in a crime, not the nature of participation, he said. In his opinion, allowing trial chambers to use Regulation 55 to change the mode of liability from one subsection of Article 25 to another is overly broad and would not only violate the right of an accused to be tried without undue delay but would also go against the basic purpose of the Rome Statute to set out the parameters of a case early at the pre-trial stage.

The trial chamber’s decision would also violate Katanga’s right to be informed of the charges in detail, Judge Tarfusser considered. The trial chamber’s notice decision did not provide sufficient information about the factual and legal elements underpinning the potential change. Unlike the Appeals Chamber majority, Judge Tarfusser thought that more detailed information should have been given at in the first Regulation 55 notice decision.

Differences with Other Tribunal

The Regulation 55 issue boils down to how the nature of the charge, or the legal qualification of the facts, impacts the final judgment. There are different approaches to this issue. In common law systems, the emphasis is on the characterization of specific facts as “offences,” and how the prosecution describes them in the indictment. In common law systems, the prosecution’s characterization of the offence is binding on the trial chamber as otherwise it would violate the fair trial rights of the accused. The trial chamber may, however, convict the accused for a lesser included offense (such as aiding and abetting genocide, which is considered a lesser included offense to genocide).

This is the approach taken by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL). There, the prosecution can charge accused under different theories of the case and different modes of liability, and the trial chamber can convict or acquit based on its evaluations of the facts according to different forms of commission. In these courts, the prosecution will often charge numerous offences in order to avoid acquittals where it is only a matter of changing the legal characterization of facts. However, some argue that this leads to unnecessarily long and complicated trials.

For example, at the SCSL, former Liberian president Charles Taylor was accused of committing crimes against humanity and war crimes directly through a joint criminal enterprise, command responsibility, and through other forms of liability such as planning, ordering, or aiding and abetting the crimes. He was ultimately convicted of aiding and abetting and planning the crimes charged.  Because the Prosecution was able to include multiple forms of liability in its indictment, the defense had notice that Taylor could be convicted for any of these crimes and modes of liability. The trial chamber did not have to re-characterize the facts of the case when it realized aiding and abetting were more appropriate modes of liability in that case. Although this might be considered as creating large and unruly cases and extend the length of trial, this practice provides the accused with notice of all potential forms of charges against him or her, increasing legal certainty in those cases.

In civil law systems, however, the focus is more on the facts than on how the prosecutor characterizes the facts in the indictment. In those systems, the judges are considered to know the law and be the best able to characterize the facts presented during trial. The prosecution’s characterization in the indictment is considered a mere recommendation or theory of the case. This is the approach taken by the ICC. The issue in Katanga will add to the growing body of jurisprudence on the law and practice of changing charges against an accused during trial and will continue to create debate about the balance between efficient trials and an accused’s fair trial rights.