On 10 February 2016, the judges of the International Criminal Court (“ICC”), during their 34th plenary session, provisionally amended rule 165 of the Rules of Procedure and Evidence (“Rules”). Rule 165, which addresses certain procedures related to proceedings for offences against the administration of justice, pursuant to article 70 of the Rome Statute, has been provisionally amended in order to allow for the respective functions of the Pre-Trial and the Trial Chamber, including the confirmation of charges and the trial, to be exercised by one judge instead of a chamber of three judges. The provisionally amended rule 165 further allows for appeal proceedings to be conducted by a panel of three judges instead of the Appeals Chamber. The judges of the Court considered that these amendments will enhance the overall efficiency of proceedings before the Court by ensuring that the Court is able to focus its judicial resources on core crimes while preserving the fairness of article 70 proceedings.
This provisional amendment was adopted by the judges in accordance with article 51(3) of the Rome Statute which permits a two-thirds majority of judges to draw up provisional Rules in urgent cases where the Rules do not provide for a specific situation before the Court. The judges considered that the current scarcity of judicial resources and the heavy trial workload of the Court rendered it necessary to adopt the amendments provisionally.
At the same time, the judges also adopted regulation 66 bis of the Regulations of the Court (“Regulations”) which complements provisional rule 165 by establishing the modalities for the constitution of Chambers and the panel of three judges to decide appeals in article 70 proceedings.
The judges determined that provisional rule 165 and regulation 66 bis would enter into force immediately.
The judges of the Court have transmitted a report on the provisional amendment of rule 165 to the Assembly of States Parties. Pursuant to article 51(3) of the Rome Statute, provisional rule 165 will remain in force until adopted, amended or rejected by the Assembly of States Parties.
Updated versions of the Rules of Procedure and Evidence and the Regulations of the Court will be placed in the Official Journal on the Court’s website as soon as available. The text of provisional rule 165 and regulation 66bis are as follows:
Investigation, prosecution, trial and appeal
1. The Prosecutor may initiate and conduct investigations with respect to the offences defined in article 70 on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source.
2. Articles 39(2)(b), 53, 57(2), 59, 76(2) and 82(1)(d), and any rules thereunder, shall not apply. A Chamber composed of one judge from the Pre-Trial Division shall exercise the functions and powers of the Pre-Trial Chamber from the moment of receipt of an application under article 58. A Chamber composed of one judge shall exercise the functions and powers of the Trial Chamber, and a panel of three judges shall decide appeals. The procedures for constitution of Chambers and the panel of three judges shall be established in the Regulations.
3. For purposes of article 61, the Pre-Trial Chamber, as constituted under sub-rule 2, may make any of the determinations set forth in that article on the basis of written submissions, without a hearing, unless the interests of justice otherwise require.
4. The Trial Chamber seized of the case from which the article 70 proceedings originate may, as appropriate and taking into account the rights of the defence, direct that there be joinder of charges under article 70 with charges in the originating case. Where the Trial Chamber directs joinder of charges, the Trial Chamber seized of the originating case shall also be seized of the article 70 charge(s). Unless there is such a joinder, a case concerning charges under article 70 must be tried by a Trial Chamber composed of one judge.
Regulation 66 bis
Constitution of Chambers and the panel of three judges
1. The President of the Pre-Trial Division, at the request of the Pre-Trial Chamber seized of the relevant situation, shall constitute, in accordance with rule 165(2), a Chamber composed of one judge from the Pre-Trial Division to exercise the functions and powers of the Pre-Trial Chamber from the moment of receipt of an application under article 58 with respect to offences defined in article 70.
2. The Presidency shall constitute, in accordance with rule 165(2), a Chamber composed of one judge to exercise the functions and powers of the Trial Chamber, and a panel of three judges to decide appeals with respect to offences defined in article 70. This provision shall not apply in the event of a joinder of charges pursuant to rule 165(4).
Report on the Adoption by the Judges of Provisional Amendments to Rule 165 of the Rules of Procedure and Evidence
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