The 'Fair Fight' Against Impunity: A Proposal on the Modalities for Implementation of Regulation 55

Abstract

The right to a fair trial is the cornerstone of modern democracies and as such has been acknowledged as being of paramount importance in international criminal proceedings. Yet, the triggering of Regulation 55, which authorizes the judges to modify the legal qualification given to the facts, has been criticized for endangering the rights of the accused. This thesis seeks to reconcile Regulation 55 with the fair trial rights of the accused in ICC proceedings. Essentially, it is argued that outweighing the norm's impact upon fairness mandates the adoption of additional safeguards, namely the exclusion of excessively late notification and the conditioning of tardive notice to the presentation of new evidence. Further, the change must be limited in scope and may require an increase of the Defense's resources. These findings call for a re-adjustment of the current practice of the Trial Chamber when implementing Regulation 55, as raising legitimate concerns as to the fairness of the proceedings. The fight against impunity must in any case obstruct due process. Derogating to this rule could result in tragic consequences at both the micro and macro-level: more than ‘merely’ affecting the accused, exceptions to due process endangers the legitimacy of the ICC in adjudicating international crimes, and ultimately its efficiency in fighting against impunity.