In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

   1. That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

   2. That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.9

In addition to the existing heated debates surrounding effective command or control and actual or constructive knowledge of the commander, this provision gives rise to a novel question—whether causation between a commander’s failure and the crimes committed by his subordinates is required as an element. The statutory language specifically states that a commander shall be criminally responsible “for crimes […] committed by forces under his or her effective command and control […] as a result of his or her failure to exercise control properly over such forces […].” Absent from the ICTY and ICTR Statutes,10 the phrase “as a result of” sparks deliberation as to whether causation is required as a new element in Article 28. To properly address this question, this comment first examines the nature and appropriate characterization of command responsibility.

II. Legal Character of Command Responsibility

The dichotomy is whether command responsibility is a separate offense or a form of liability. The commander can be punished for his own failure to intervene and control as well as for the crimes of their subordinates.11 Therefore, the doctrine seemingly creates both direct liability (for lack of supervision) and indirect liability (criminal acts of subordinates), and the theoretical differences bear practical importance in issues such as evidentiary standards,12 as well as on the inquiry of this comment.

A. Form of Liability—Accomplice and Endangerment

The view that command responsibility should be treated as a form of liability receives extensive scholarly support. It is important to note that during the evolution of the doctrine, the theory of strict liability has largely been rejected.13 One of the first and most famous (or notorious) cases for command responsibility post-WWII is the trial of General Yamashita, who was charged (and eventually executed) for “failing to discharge his duty as a commander to control the operation of the members of his command, permitting them to commit brutal atrocities and other high crimes.”14 The term “permitting” in the charge suggests that Yamashita was guilty simply because the atrocities took place, which resembles a form of strict liability where the commission of crimes constitutes per se proof that Yamashita’s failure to control.15 Though the Yamashita Court was widely considered to have adopted the strict liability standard, it did not fully do so, because it still devoted some attention to mens rea. The Court employed a presumption of knowledge by concluding that the accused “either knew or had the means of knowing” the commission of the crimes because of their widespread nature and notoriety of crimes.16

Wu and Kang explore the plausibility of command responsibility as a strict liability by analogizing to the RCO doctrine, which deals with U.S. prosecution of public welfare offenses under the Food, Drug, and Cosmetic Act.17 The RCO doctrine dispenses the conventional mens rea requirement in criminal conducts, and in the interest of public welfare, puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.18 Similarly, the commander imposes risk on the unsuspecting public and deprive profits; it would therefore be fair to hold him liable for his omissions irrespective of mens rea, because he assumed the risks associated with his position.19 Nevertheless, the analogy is defective because international criminal law deals with gross moral wrongdoing instead of creating an incentive structure for neutral underlying acts, and the punishment is considerably higher.20

Even though not imputed or vicarious, the liability of the commander is still derivative in some sense.21 A popular interpretation of command responsibility is accomplice liability. In some United States jurisdictions and the Model Penal Code, the accomplice is punished to the same degree as the principal if the accomplice shares the mens rea as to the result element of the crime; other legal systems have treated accomplice liability as a separate crime and punished less severely.22 The deterrence effect of a lower mens rea effect is not unambiguously greater, because the scope of criminal law is less predictable from a subjective point of view, and deterrence is not effective when one cannot anticipate being held liable for their actions.23 As an attempt of compromise to reconcile the lack of enforceability of subjective mens rea standard and the over strictness of an objective one, the existing international law seems to adopt a reduced mens rea standard analogous to knowing facilitation—a knowledge that one’s behavior facilitates the criminal purpose.24 However, much ambiguity surrounds the “knew or should have known” standard.25

Bantekas regards command responsibility as a form of complicity by omission under the ICTY and ICTR Statutes, distinguished from positive and direct participation in the crime.26 Criminal complicity requires a willful and substantial contribution to the criminal offenses; command responsibility should have the same effect when it arises out of knowledge of the crimes of subordinates or gross negligence that contributed to their commission.27 Similarly, Judge Eboe-Osuji readily appreciates complicity as a basis of command responsibility in his concurring opinion in the Bemba appeal for accessory before the fact.28 The inculpation of the commander in his subordinates’ crimes stems from the fact that the commander helped to create the danger of the crimes, and voluntarily condoned the crimes when in a position to prevent them, so the personal nexus of the commander would be amply demonstrated.29

Robinson analyzes command responsibility as a mode of accessory liability.30 He believes that this is the correct understanding with overwhelming scholarly support and reflects the application over the history of international criminal law, as commanders have been charged and convicted as a party to the underlying crime of their subordinates.31 Robinson specifically rejects command responsibility as a separate crime of dereliction, arguing that this approach is not available under applicable international law based on the organization and structure of the instruments.32 The crimes are listed in Articles 2 through 5 of the ICTY Statute whereas command responsibility is listed in Article 7 which includes individual criminal responsibility, suggesting that the doctrine is a mode of liability.33 Article 28 of the Rome Statute explicitly designates command responsibility as a ground for liability for core crimes created by subordinates, because definitions of crimes are laid out in Part I of the Statute whereas Article 28 appears in Part III.34

On a similar ground, Judge Eboe-Osuji rejects the theory of separate offense of dereliction in his concurring opinion of the Bemba appeal.35 Comparing the text of the command responsibility provision in Article 86(2) of Protocol Additional I of Geneva Convention (Additional Protocol I),36 Judge Eboe-Osuji notes that Article 28 of the Rome Statute deviates in important ways—the Rome Statute speaks of “criminal responsibility for crimes” committed by the subordinates, and proactively imposes such criminal responsibility; whereas Additional Protocol I contemplates “penal or disciplinary responsibility” and does not in itself impose such responsibility.37 The impulse of dereliction of duty is rational in that it attempts to assuage the discomfort that the commander can be punished for the crimes of subordinates when they neither participated in the actus reus nor shared the primary mens rea of the crimes, shifting the emphasis to the commander’s own criminal liability.38 However, this framework is incompatible with Article 28 of the Rome Statute, which expressly requires that commander be held liable for crimes within the jurisdiction of the Court, and dereliction of duty is not among the crimes defined in Article 5 of the Rome Statute.39 Obviously, Judge Eboe-Osuji regards dereliction of duty as a separate crime rather than a theory to attribute blame in an adjective sense, because he argues that the then-hypothetical substantive crime either struggles to go beyond dereliction of duty itself or renders the theory meaningless.40 Judge Eboe-Osuji’s position can be read broadly as to reject the doctrine of command responsibility as a separate crime regardless of the theoretical rationale, by the same logic that accused can only be liable for “crimes within the jurisdiction of the Court.”

From Judge Eboe-Osuji’s perspective, the doctrine of command responsibility is ultimately anchored in endangerment liability.41 Concerns of criminal law extend beyond conducts that cause actual harm to those that create the threat or risk of harm.42 Endangerment liability is consistent with the mens rea requirement since one could only be held liable if one knowingly creates the risk of harm.43 The theory of endangerment strikes a balance between individual autonomy and common welfare, and is especially applicable to conduct with limited social utility and well-known risks.44 Warfare qualifies for such a situation with its notorious danger, and this angle of policy should guide the interpretation of Article 28.45 The Rome Statute imposes on the commander a duty to take care through proper supervision to ensure that the operations do not cause harm to innocent civilians.46 Again, the endangerment liability under Article 28 is attenuated and not strict, because it is result-regarding and fault-based.47

B. Separate Crime of Omission

In direct contrast with Judge Eboe-Osuji and Robinson, Kai Ambos argues against labeling command responsibility as a form of complicity liability. Instead, Article 28 of the Rome Statute can be characterized as a separate crime of omission, since it holds a commander liable for failure to control the subordinates on an objective level, but not for the crimes committed by the subordinates.48 The peculiar structure of the provision extends the commander’s mens rea beyond their own failure to supervise to the crimes of their subordinates.49 Conceptually, simultaneous liability for complicity and omission can only arise when the mental object is the same in respect to crimes committed by subordinates.50 This is usually not the case, since the mens rea in the case of command responsibility is the failure to control which is the main object of the offense.51 Conversely, in the case of complicity, the commander must share the intent of their subordinates, having mens rea in regards to the commander’s own contribution and to the main crime.52 This would render command responsibility subsidiary.53

Moreover, Ambos notes that Article 28 imposes a broad liability because the commander can be punished for a mere negligent (should have known) failure of supervision.54 Therefore, the commander cannot be considered as a mere accomplice, which requires intent.55 A negligent commander seems less blameworthy than were he to have actual knowledge and acted with intent, and a genuine question arises as to how can the intentional act of subordinates be imputed to the commander.56 In this scenario, Ambos considers mitigation of punishment,57 since it would be logical not to find the commander liable at all and the sole obstacle is the incompatibility with the statutory language in Article 28.58

Jackson advocates for a separate offense reading as well.59 He argues that the Bemba Court unnecessarily trapped itself to designate command responsibility as mode of liability in the starting point question, which leads to the unconvincing approaches to the issue of the causation requirement.60 To rebut Robinson’s argument, Jackson claims that nothing in the structure of the Rome Statute or the text of Article 28 establishes command responsibility as a mode of liability.61 While Article 28 appears in Part III of the Rome Statute (General Principles of Criminal Law) instead of Part II which sets out crimes within the jurisdiction of the Court, Part II is not an exhaustive list of those crimes.62 Part III contains substantive crime such as direct and public incitement to genocide.63 Similarly, Judge Eboe-Osuji’s reliance on the provision that the commander shall be criminally responsible for crimes within the jurisdiction of the Court is impeachable. Article 25(3) has the same language and it straightforwardly reads to mean responsibility for those crimes listed, such as incitement to genocide.64

Scholars that reject treating command responsibility as a separate crime nevertheless acknowledge some value in the approach, including evading problems associated with derivative liability.65 The commander can be liable for criminal neglect of superior’s duty, for which he is unambiguously guilty for as a principal instead of an accomplice.66 The separate crime approach would resolve the culpability issue, as the commander would not be held indirectly liable for crimes they did not contribute to.67 The lowering of the degree and the scope of mens rea needs to be balanced against the reduction of punishment imposed.68 But designating command responsibility as a separate crime is nevertheless a useful tool to the prosecutor, since they can capture failure that does not meet the requirement of accomplice liability and mens rea is usually the most contentious issue of the crime.69

Robinson does not outright disapprove of the separate offense approach and simply believes that this approach is not available under international criminal law. However, he suggests that national legislatures are free to adopt the doctrine of command responsibility as a separate offense.70 The opponents of the separate offense approach also have argued that dereliction would be insufficiently serious to warrant intervention of the ICC, which should focus on the most serious crimes of concern to the international community and those responsible for them.71 However, the commander’s putative failure should be sufficiently serious to warrant liability at the international level as a matter of policy choice, as they are best placed to ensure compliance with international law.72

III. Causation Requirement in Article 28

The concept of causation, at its barest generalities, describes the relationship between two events, in which the preceding event occasions a subsequent one.73 With unsettled philosophical questions, including whether the relationship is determinative (in the sense that the preceding event necessitates the subsequent one) or probabilistic, exclusive (in the sense that there are no other contributing factors) or merely conducive, the law rests on policy choices rather than applying a unitary system.74

A. Impact of Theoretical Differences on Causation

The theoretical lens through which command responsibility is examined has an important bearing on the question that this comment seeks to address—whether causation is required as an element for liability under Article 28 of the Rome Statute. While the dichotomy of separate offense and mode of liability does not present a conclusive answer, it is a starting point. Reasonings behind various theories facilitate the understanding of whether Article 28 has a causation requirement.

As a separate offense, the breach of command responsibility can be non-contributory in that the commander’s failure need not have contributed to the core crimes of the subordinates.75 Causal relationship is not required, or even that the core crimes occurred at all.76 While conceivable in national legislatures, international criminal law generally aims to punish gross wrongdoing and is usually result-based. Therefore, the non-contributory separate offense approach should still be under the premise that the core crimes have taken place. Alternatively, the separate offense can be construed as contributory. The underlying crimes of the subordinates serve as a point of reference of the commander’s failure of supervision, thus a causal relationship between the commander’s failure and the occurrence of the crimes must exist.77 The “but for” test should be inverted for omissions: the crimes would not have been committed had the commander properly supervised the subordinates, therefore, the omission “caused” the consequences.78 Despite a reluctance arising out of the principle of criminal law emphasizing the distinctive responsibility of one’s own actions, omissions can amount to causes when the defendant is under a specific duty not to cause harm in question derived from reasonable expectation or imposed by law.79

Under the framework of accomplice liability, causal contribution is required. The personal culpability principle dictates that one must contribute to a crime to be liable for it, and the requirement that the accused be causally linked to the crime itself is a fundamental principle of criminal law.80 The contribution of an accomplice can be indirect, such as influencing or assisting the voluntary acts of the principal.81 Requirement for accomplice contribution is more elastic than a strict but-for causation test, since the accomplice is held liable by virtue of his influence on the perpetrator and tracing causation through voluntary acts of others could be problematic.82 The extent of contribution is risk-aggravation—requiring only that commander’s omission increased the risk of commission of the crimes by the subordinates.83

Under endangerment liability, culpability does not always require that the conduct of the accused have caused actual harm, so long as it created a dangerous situation.84 The classic form of endangerment is non-consummate, as in actual harm need not have taken place.85 Modulated form of endangerment liability may be described as consummate,86 which is more compatible with international criminal law. Conceptually, in situations where the harm does occur, the theory of endangerment seems to suggest at least a contribution, if not a causal contribution between the defendant’s conduct and the actual harm.

B. Arguments in the Opinions of the Bemba Case and Appeal

The ICC issued its first ruling on command responsibility in 2016 in the case of Jean-Pierre Bemba,87 a Congolese politician and former rebel leader.88 Bemba was the president of Mouvement de Libération du Congo and commander of its military arm, and he sent troops to the aid of Ange-Félix Patassé, the democratically elected president of the Central African Republic, where his troops committed rapes, murders, and pillaging.89 Bemba was charged with crimes against humanity and war crime.90 The Pre-Trial Chamber offered some preliminary considerations of Article 28 in the confirmation of charges decision.91 Appearing to treat command responsibility as a mode of liability, the Chamber also noted that Article 28 expressly requires causal contribution—that the crimes be “a result of” a failure by the commander to exercise control properly.92 However, causation only applies in relation to “duty to prevent” and prospective crimes, and this is a partial denial of the causation requirement.93 As for the extent of the contribution, the Chamber took an risk-aggravation approach, noting that it is only required that the commander’s failure increased the risk of the commission of the crimes charged.94

On the novel issue of causation, the Trial Court requires some form of “personal nexus” between the individual and the crimes for which he is held liable as a core principle of criminal law.95 Similar to the Pre-Trial Chamber, the Trial Court also rejects the but-for test.96 Instead, it suggests that one standard that can satisfy the personal nexus is that:

[C]rimes would not have been committed, in the circumstances which they were, had the commander exercised control properly, or the commander exercising proper control would have prevented the crimes.97

The Court further explained that this standard is higher than what the law requires, but does not elaborate in light of the factual findings of the case.98 It seems that the Court’s standard focused on whether exercise of proper control could have made a difference, which is aligned with the risk-aggravation approach,99 and are more inclined to find causation in situations that the commander failed to prevent.

Bemba was acquitted of all charges in the appeal judgment in 2018,100 but the causation requirement remains unsettled as the judges are drastically divided on this issue. Even if causation is required as an element under Article 28, what is the proper standard? From a shared foundational understanding of command responsibility as a mode of liability, judges advanced arguments about the causation requirement on different grounds.101

The separate opinion of Judge Van den Wyngaert and Judge Morrison represents the first approach, claiming that Article 28 does not require causation at all.102 First and foremost, an argument raised by many is that the causation requirement does not stand from the standpoint of logic—it is simply not possible that an omission after a fact has occurred can cause this fact.103 Were causation a requirement under Article 28, a commander can never be responsible for a single crime or the first crime in a series of crimes.104 The separate opinion rejects the risk-aggravation approach, because the commander’s failure to take measures is a failure to reduce an existing risk and does not increase the risk—the risk simply stays on the same level.105

The logical incompatibility creates complications in failure to repress or submit the matter to competent authorities. Robinson cautions against treating the commander in these scenarios as an accessory after the fact.106 This early concept in criminal law stipulates that a person assisting a perpetrator to avoid arrest, trial, or conviction thereby becomes a party to the original felony.107 A parallel argument can be made for command responsibility, as failure to punish the subordinates or submit them to competent authorities facilitates their escape from justice.108 However, due to concerns of culpability, liberal systems have moved away from treating accessory after the fact as a mode of liability for the original crime but instead as a separate offense, such as obstruction of justice or harboring a fugitive.109 One cannot be held liable retroactively for an already completed crime that one never participated in or contributed to even in the broadest terms.110

The separate opinion seems to concede that there is no inherent incompatibility between the causation requirement and failure to punish, suggesting that it is theoretically possible that failure to punish an initial crime may increase the risk of subsequent crimes.111 However, the incompatibility is evident when applied to failure to submit the matter to competent authorities. They refuse the theory of culture of impunity which increases the risk of subsequent crimes,112 because not every failure to submit a subordinate suspected of criminal activity automatically induces future criminal conduct.113 It is necessary that the subsequent perpetrator knew about the initial crime and knew that the commander was also aware of the crime and deliberately failed to take any measures, and that this played a significant role in the perpetrator’s decision to commit the subsequent crime.114 Moreover, the time lag between initial crime and formal prosecutions by the competent authorities makes the commander’s failure to submit to have a causal effect in extremely few exceptions, rendering most command responsibility cases based on failure to submit under subparagraph (ii) out of scope of Article 28.115 This is an absurd result that contradicts the principle of effectiveness.116

In his concurring opinion, Judge Eboe-Osuji recognizes the intricacies of the causation requirement when applied to failure to refer the subordinates to competent authorities, a scenario that seemingly renders the separate offense approach more attractive.117 However, he believes that there may be instances that past failure to submit could result in subsequent commission of crimes, satisfying the causation requirement, and these instances cannot be so rare as to render subparagraph (ii) ineffective.118 The annals of warfare signifies the possibility that certain commanders would willfully refrain from having their subordinates persecuted, treating such violations as licenses to deserving soldiers, thus encouraging further crimes in that kind.119 The time lag between the initial and subsequent crimes and whether the commander is still in post should not matter in finding liability, since there is no statute of limitation for international crimes.120 All that matter is the phrase “as a result of,” which connects that subsequent crimes to the commander’s failure.121

The separate opinion’s reading of command responsibility as a mode of liability coupled with its total abandonment of the causation requirement may violate the fundamental principle of culpability in criminal law.122 This approach would mean that Article 28 entails the responsibility of a commander as a party of the crime absent any contribution, and it is especially problematic for the lower fault standard of “should have known” for military commanders.123 The statutory text indicates a negligence standard, and this approach risks transforming a negligent omission into intentional criminality of the most serious nature.124 The partial denial approach, adopted by the Pre-Trial Chamber that interprets causation to only apply to duty to prevent cases, is subject to the same contradiction with culpability.125

The dissenting opinion by Judge Monageng and Judge Hofmanski adopts a second approach, which Jackson refers to as the consequent crime approach.126 The dissent believes that causation is required in all scenarios, and attempts to resolve the tension by denying that failure to punish alone is sufficient to establish criminal liability—further crimes are required.127

First of all, the dissenting opinion raises a textual argument. The statutory language of Article 28 explicitly stipulates a nexus requirement of “as a result of,” which strongly indicates that commander’s failure caused the commission of crimes by his subordinates.128 ICTY’s rejection of causation does not pose a major obstacle in the interpretation of Article 28, because ICTY’s jurisprudence postdates the adoption of the Rome Statute and could not have influenced its drafting.129 As to the standard of causation, the dissenting opinion also rejects a strict but-for test, as it involves assessment of hypotheticals and cannot be determined with empirical precision.130 This is further complicated with unforeseen intervening acts and the end result being the intentional crime of subordinates, who are capable of making their own decisions, potentially against the orders of the commander.131 In the view of dissenting opinion, causation can be satisfied if there is a “demonstratable close link” between the commander’s omission and the crimes.132 Causation would be established if there is “a high probability” that had the commander discharged his duties, the crimes would have been prevented or would not have been committed in the manner that it was.133 The dissenting opinion seems to adopt the position of the Trial Court, drawing on and adapting from the language of personal nexus and the idea that the commander would have made a difference.

Judge Eboe-Osuji also agrees with the “consequent crime” approach, insisting on subsequent commission of crimes as the prerequisite for establishing a causal relationship.134 While not every failure can be regarded as having resulted in subordinates’ subsequent crimes, commander need not be held liable for every instance of the crime, but only when it can be shown beyond reasonable doubt that commander’s failure resulted in the commission of subsequent crimes.135 Robinson argues that the faulty logic incompatibility that failure to punish a crime cannot cause that same crime was a major reason early tribunals took a wrong turn with the doctrine by rejecting the causation requirement.136 For the extent of contribution, Judge Eboe-Osuji favors the standard that defendant’s causal contribution should be significant and cautions against confusing the term with substantial.137 Defendant’s contribution need only be more than negligible or not to be so minute that it will be ignored under the de minimis principle.138 If based on the characterization of command responsibility as a mode of liability and the assumption that risk aggravation test is applied stringently, the consequent crime approach may satisfy the principle of culpability.139

Where do the opinions in the Bemba appeal leave us with the ultimate question of whether causation should be required as an element under Article 28? In the starting question of the legal character of the doctrine, the Bemba Appeal Chamber took the unanimous position of treating command responsibility as a mode of liability.140 Two judges argue that causation should not be required while three judges believe that it should, adopting a consequent crime approach. As discussed in the theoretical approaches to the characterization of command responsibility, it seems that causation is always required if the doctrine is interpreted as a mode of liability because the issue of culpability cannot be circumvented. Therefore, the short answer is yes—causation is required, albeit with unsettled standards based on the Bemba appeal. The dissenting opinion argues for a high probability that the properly exercised control of the commander could have made a difference, while the concurring opinion adopts the risk-aggravation approach, namely the omission of the commander increased the risk of the commission of the crimes by the subordinates.

C. Alternative Reality: No Causation Requirement

That seems to conclude the story if the Bemba appeal judgment is the final chapter of command responsibility. However, the Bemba case is only the ICC’s first attempt to address command responsibility and will hardly be the last. There are still other possibilities, both to the legal character of the doctrine and to the causation requirement. This comment ponders the alternative reality and argues that causation should not be required under Article 28.

First, a revisit to the language of Article 28 suggests that there are multiple interpretations of the text.141 The proponents of the causation requirement claim that the phrase “as a result of his or her failure” explicitly requires that there be a causal relationship between the commander’s failure and the subordinate’s crimes. Based on this reading, the clause “as a result of” relates to the crimes.142 However, an alternative reading is also plausible—the clause relates to the commander’s responsibility, and simply states that the criminal responsibility results from the commander’s failure.143 This interpretation, put forward by Amnesty International as amicus curiae to the Pre-Trial Chamber in Bemba, has gathered some recognition including by the separate opinion of the Bemba appeal.144 Among the six authentic texts of the Rome Statute,145 four languages appear to allow either interpretation, while the Chinese and the French text favors the alternative reading that the clause relates to commander’s responsibility.146 The text of Article 28 itself does not conclusively demand a causation requirement. On the contrary, application of the rules on authentic language texts in Vienna Convention on the Law of Treaties suggests that causation is not required.147 Terms of the treaty are presumed to have the same meaning in each authentic text; when it is impossible to find a common meaning, the interpreter can resort to the best reconciliation.148 Here, a common meaning exists because all six texts can read as that the relevant clause relates to commander’s responsibility and suggest that no causation is required.

Second, the causation requirement poses some structural difficulties to the existing understanding of the doctrine. On appeal, Bemba argued that the Trial Court erroneously conflated the “measure” and the “causation” elements of Article 28.149 Does a causation analysis overlap with the assessment of whether the commander has taken all necessary and reasonable measures? As rebuttal, the dissenting opinion explains that in the context of omission, the causation analysis necessarily entails counterfactual conditions, as in what would or might have happened, had the commander retained proper control and taken the measures expected.150 The causation analysis is “intrinsically and inextricably” intertwined with the assessment of the adequacy of the measures that the commander took and the efficacy of measures that the commander failed to take.151 The dissenting opinion’s argument helps illustrate that causation analysis is encompassed in the measures assessment. More plainly put, the dissent argues that there is no erroneous conflation of the analysis because the two assessments are supposed to be conflated. The underlying logic of the measures assessment is whether the crimes would have been prevented or would not have been committed in the circumstances that they were had these measures been taken. This corresponds to the framework of causation analysis, regardless of whether the “high probability” approach or the risk aggravation approach is used. If a particular measure is unlikely to make a difference, it would fail the measure assessment as well as the causation analysis. The perceivable conflation of elements begs the question—what is the point of a separate causation requirement then, other than to satisfy the culpability principle?

The structural difficulties of the causation requirement extend to other provisions of the Rome Statute. With all the previous discussions on the framing of command responsibility as a mode of liability, one cannot help but notice the similarity between command responsibility and the liability for co-perpetrator. If causation was required, Article 28 could be redundant because any conduct that is punishable under Article 28 will almost always be more simply punishable under Article 25(3)(d)(i) as accomplice liability.152 The dissenting opinion rebuts that the mental elements differ, and mens rea required for Article 28 are significantly lower than for any form of liability under Article 25(3).153 While theoretically true, the lines are not so bright in practice, especially given the latest development in the Bemba appeal. The liability of the co-perpetrator requires objective elements of joint control, namely a common plan and the defendant’s essential contribution; as well as mens rea, which is the defendant’s awareness of the contribution and an intent that the physical perpetrator commits the crime.154 However, the ICC has watered down the intent element to the absolute minimum, which is satisfied if the defendant is aware of the risk that physical perpetrator will commit the crime and reconcile themselves to the risk or consent to it.155 On the other hand, the discussion on the knowledge element in the Bemba appeal suggests that mens rea required in command responsibility is potentially heightened. Knowledge under Article 28 has two standards: the “know” standard under which actual knowledge can be established through direct or circumstantial evidence and the “should have known” standard which entails constructive knowledge.156 The separate opinion of Wyngaert & Morrison claims that the two standards trigger different obligations on the part of the commander, and the question of what measures that the commander should have taken does not arise in the “should have known” standard.157 The separate opinion insists on the difference between actual knowledge and merely having information that put the commander on notice of the crimes,158 and the liability of the commander is further limited with the various requirements on qualifying information on its certainty and credibility. When the commander has genuine reasons to doubt the accuracy of the information, he may be absolved of command responsibility even if that information turns out to be true.159 Under this framing, it is generally harder to find that the commander has knowledge, and the knowledge element in command responsibility resembles the intent element in co-perpetrator liability. Even if they do not blend seamlessly, they do not present a stark contrast claimed by the dissenting opinion that the mens rea in the knowledge element is much lower.

Third, a dissection of Article 28 suggests that the logical inconsistency between retrospective duties and the causation requirement is hard to bypass. The text explicitly and unambiguously prescribes responsibility regarding crimes that have already been committed for failure to repress and failure to submit to competent authorities.160 Under Article 28, liability can arise for entirely retrospective failures, consistent with preceding international criminal instruments.161 None of the various approaches to causation requirement address this inconsistency in a satisfying manner. The Pre-Trial Chamber’s position that causation only applies to the duty to prevent directly tackles this inconsistency. However, it lacks textual support—why should it be the case that causation only applies to the duty to prevent, but not to the duty to repress and submit to competent authorities? Instead of trying to reconcile the causation requirement with retrospective duties, this position circumvents the conflict by claiming that the causation requirement does not apply to retrospective duties. Meanwhile, this position is a partial denial of the causation requirement, and it would run into the issue of culpability if under the mode of liability framework.

The consequent crime approach by the proponent of the causation requirement in the Bemba appeal also attempts to address this inconsistency, but it comes at great costs by essentially denying retrospective duties. Claiming that the causation requirement applies to all duties but can only be satisfied when the commander’s failure has contributed to subsequent crimes, this approach constitutes a castration of the doctrine by effectively carving out significant areas in which liability can arise. While both failure to repress and failure to submit to authorities technically can give rise to subsequent crimes and can be covered by this approach, there might be more scenarios that these failures are not followed by subsequent crimes.162 These scenarios would be left out of the Article 28, despite the fact that they were explicitly contemplated in the instruments of ICTY and ICTR.163 Also, this approach would leave out significant categories of international crimes such as isolated crimes and those committed towards the end of the conflict.164 Command responsibility will be seriously limited in terms of application and practice, and it would be surprising if this aligns with the drafters’ intentions.165 By eliminating retrospective duties, this approach also faces some structural difficulties. Failure to punish would collapse into failure to prevent, because conduct that can be characterized as failure to punish a preceding crime can nevertheless be captured by failure to prevent the subsequent crime.166

These approaches to the causation requirement either abandon causation in the context of retrospective duties or interpret retrospective duties out of Article 28. It is obvious at this point that retrospective duties and the causation requirement are simply irreconcilable. If only one notion can exist in the doctrine, it should be retrospective duties. This position is supported by textual interpretation, policy choice, and preceding legal history of the tribunal cases.

IV. Conclusion

The common meaning of the six authentic texts of the Rome Statute suggests that Article 28 does not require causation between the commander’s failure and the commission of crimes. Moreover, the causation requirement is unworkable because of the risk of conflation with other elements of Article 28 and other provisions of the Rome Statute and its incompatibility with the retrospective duties. An inclination that causation is not required under Article 28 warrants a revisit of the starting question of the legal character of command responsibility. While the issue of culpability cannot be avoided and causation must be required under the mode of liability framing, characterizing command responsibility as a separate offense brings new possibilities. As evident in the Bemba appeal, standards for both the knowledge element and the control element167 have been heightened, and it would be increasingly more difficult to hold the commander criminally liable under the doctrine in the future. Even if they were, the scenarios that can give rise to liability would be severely limited due to the causation requirement. To preserve some functionality and the essence of the doctrine, as well as to promote justice, the ICC should consider the alternative of analyzing command responsibility as a separate offense with reduced punishment. This alternative reality has significant value as it avoids the impossible balance between serious castration of command responsibility and the principle of culpability, and instead holds the commander liable solely for their own failures.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 28, available online. ↩

2. 2.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (ICC AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online. ↩

3. 3.

   E.g., Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict, and Why?, 38 N. Ill. U. L. Rev. 298, 299 (Apr. 1, 2018), available online. ↩

4. 4.

   Id. at 301. ↩

5. 5.

   See Ilias Bantekas, The Contemporary Law of Superior Responsibility, 93 Am. J. Int’l L. 573, 573 (Jul. 1999), paywall, doi. ↩

6. 6.

   See Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 7(3) (adopted May 25, 1993, as last amended Jul. 7, 2009) [hereinafter ICTY Statute], available online. ↩

7. 7.

   See Statute of the International Tribunal for Rwanda, S.C. Res. 955, Art. 6(3) (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

8. 8.

   Rome Statute, supra note 1, at Art. 28.

   (For the purpose and scope of this comment, Art. 28(b), which discusses the responsibility of “other superiors,” is left out of the discussion). ↩

9. 9.

   Id. ↩

10. 10.

    See ICTY Statute, supra note 6, at Art. 7(3).

    (“The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”).

    See ICTR Statute, supra note 7, at Art. 6(3).

    (“The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”). ↩

11. 11.

    Kai Ambos, Superior Responsibility, in The Rome Statute of the International Criminal Court: A Commentary 823, 824 (Antonio Cassese, Paola Gaeta, John R. W. D. Jones eds., 2002), available online, doi. ↩

12. 12.

    Id. ↩

13. 13.

    E.g., Bantekas, supra note 5, at 577. ↩

14. 14.

    Sherman, supra note 3, at 301. ↩

15. 15.

    Id. at 302. ↩

16. 16.

    Bantekas, supra note 5, at 588. ↩

17. 17.

    Timothy Wu & Yong-Sung Kang, Criminal Liability for the Actions of Subordinates: The Doctrine of Command Responsibility and its Analogues in United States Law, 38 Harv. Int’l L.J. 272, 279–80 (1997), available online. ↩

18. 18.

    Id. ↩

19. 19.

    Id. ↩

20. 20.

    Id. at 280–81. ↩

21. 21.

    Id. at 282. ↩

22. 22.

    Id. ↩

23. 23.

    Id. at 283. ↩

24. 24.

    Id. ↩

25. 25.

    E.g., id. at 284–85. ↩

26. 26.

    Bantekas, supra note 5, at 577. ↩

27. 27.

    Id. ↩

28. 28.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute,” ¶ 198 (ICC AC, Jun. 14, 2018) [hereinafter Concurring Opinion of Eboe-Osuji], available online. ↩

29. 29.

    Id. ¶¶ 198–200. ↩

30. 30.

    Darryl Robinson, How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution, 13 Melb. J. Int’l L. 1, 8 (Oct. 28, 2011), available online. ↩

31. 31.

    Id. at 34. ↩

32. 32.

    Id. at 32. ↩

33. 33.

    Id.; ICTY Statute, supra note 6, at Arts. 2–5, 7. ↩

34. 34.

    Robinson, supra note 30, at 32. ↩

35. 35.

    Concurring Opinion of Eboe-Osuji, supra note 28, ¶¶ 188–197. ↩

36. 36.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3 (Jun. 8, 1977) [hereinafter Additional Protocol I], available online, archived. ↩

37. 37.

    Concurring Opinion of Eboe-Osuji, supra note 28, ¶¶ 189–190, quoting Additional Protocol I, supra note 36, at Art. 86(2)

    (“The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”) (emphasis added). ↩

38. 38.

    Id. ¶ 191. ↩

39. 39.

    Id. ¶ 195. ↩

40. 40.

    Id. ¶ 197. ↩

41. 41.

    Id. ¶ 232. ↩

42. 42.

    Id. ¶ 233. ↩

43. 43.

    Id. ↩

44. 44.

    Id. at 234. ↩

45. 45.

    Id. at 243–44. ↩

46. 46.

    Id. at 246. ↩

47. 47.

    Id. ↩

48. 48.

    Ambos, supra note 11, at 833. ↩

49. 49.

    Id. ↩

50. 50.

    Id. at 834–35. ↩

51. 51.

    Id. ↩

52. 52.

    Id. ↩

53. 53.

    Id. ↩

54. 54.

    Id. ↩

55. 55.

    Id. ↩

56. 56.

    Id. ↩

57. 57.

    See also Wu & Kang, supra note 17, at 289–90. ↩

58. 58.

    Ambos, supra note 11, at 835. ↩

59. 59.

    Miles Jackson, Causation and the Legal Character of Command Responsibility after Bemba at the International Criminal Court, 20 J. Int’l Crim. Just. 437, 448 (May 2022), available online, doi. ↩

60. 60.

    Id. ↩

61. 61.

    Id. at 453. ↩

62. 62.

    Id. at 452. ↩

63. 63.

    Id. ↩

64. 64.

    Id. ↩

65. 65.

    Wu & Kang, supra note 17, at 289–90; Robinson, supra note 30, at 31. ↩

66. 66.

    Wu & Kang, supra note 17, at 289. ↩

67. 67.

    Robinson, supra note 30, at 31. ↩

68. 68.

    Wu & Kang, supra note 17, at 290; Robinson, supra note 30, at 32. ↩

69. 69.

    Id. ↩

70. 70.

    Id. at 31–32. ↩

71. 71.

    Jackson, supra note 59, at 455. ↩

72. 72.

    Id. ↩

73. 73.

    Concurring Opinion of Eboe-Osuji, supra note 28, ¶ 157. ↩

74. 74.

    Id. ¶ 158–159. ↩

75. 75.

    See Robinson, supra note 30, at 31. ↩

76. 76.

    Id. ↩

77. 77.

    Ambos, supra note 11, at 833. ↩

78. 78.

    Id. at 842. ↩

79. 79.

    Concurring Opinion of Eboe-Osuji, supra note 28, ¶ 167–169; see also Robinson, supra note 30, at 43. ↩

80. 80.

    Robinson, supra note 30, at 12. ↩

81. 81.

    Id. at 13–14. ↩

82. 82.

    Id. ↩

83. 83.

    Id. at 44–45. ↩

84. 84.

    Concurring Opinion of Eboe-Osuji, supra note 28, ¶ 234. ↩

85. 85.

    Id. ¶ 237. ↩

86. 86.

    Id. ↩

87. 87.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute (ICC TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment], available online. ↩

88. 88.

    Sherman, supra note 3, at 325. ↩

89. 89.

    Id. ↩

90. 90.

    Robinson, supra note 30, at 53. ↩

91. 91.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (ICC PTC II, Jun. 15, 2009) [hereinafter Bemba Pre-Trial Decision], available online. ↩

92. 92.

    Robinson, supra note 30, at 54. ↩

93. 93.

    Jackson, supra note 59, at 444. ↩

94. 94.

    Id. ↩

95. 95.

    Bemba Trial Chamber Judgment, supra note 87, ¶ 211. ↩

96. 96.

    Id. ↩

97. 97.

    Sherman, supra note 3, at 325. ↩

98. 98.

    Bemba Trial Chamber Judgment, supra note 87, ¶ 213. ↩

99. 99.

    Robinson, supra note 30, at 44. ↩

100. 100.

     Bemba Appeals Chamber Judgment, supra note 2. ↩

101. 101.

     Jackson, supra note 59, at 438. ↩

102. 102.

     See id. at 433; The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, ¶ 56 (ICC AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison], available online, archived. ↩

103. 103.

     See Separate Opinion of Wyngaert & Morrison, supra note 102, ¶ 52. ↩

104. 104.

     Id. ↩

105. 105.

     Id. ¶ 55. ↩

106. 106.

     Robinson, supra note 30, at 48. ↩

107. 107.

     Id. ↩

108. 108.

     Id. ↩

109. 109.

     Id. ↩

110. 110.

     Id. ↩

111. 111.

     See Separate Opinion of Wyngaert & Morrison, supra note 102, ¶ 58. ↩

112. 112.

     Id. ¶ 52. ↩

113. 113.

     Id. ¶ 53. ↩

114. 114.

     Id. ↩

115. 115.

     Id. ¶ 54. ↩

116. 116.

     Id. ↩

117. 117.

     Concurring Opinion of Eboe-Osuji, supra note 28, ¶ 203. ↩

118. 118.

     Id. ¶ 211. ↩

119. 119.

     Id. ↩

120. 120.

     Id. ¶¶ 213–214. ↩

121. 121.

     Id. ↩

122. 122.

     See Jackson, supra note 59, at 443. ↩

123. 123.

     Id. ↩

124. 124.

     Id. at 444. ↩

125. 125.

     Id. at 444–45. ↩

126. 126.

     See id. at 445; The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, ¶ 20 (ICC AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived. ↩

127. 127.

     See Jackson, supra note 59, at 445. ↩

128. 128.

     Bemba Appeals Chamber Dissent, supra note 126, ¶ 331. ↩

129. 129.

     Id. ¶ 335. ↩

130. 130.

     Id. ¶¶ 337–338. ↩

131. 131.

     Id. ↩

132. 132.

     Id. ¶ 339. ↩

133. 133.

     Id. ↩

134. 134.

     Concurring Opinion of Eboe-Osuji, supra note 28, ¶ 210. ↩

135. 135.

     Id. ↩

136. 136.

     Robinson, supra note 30, at 27. ↩

137. 137.

     Concurring Opinion of Eboe-Osuji, supra note 28, ¶ 166. ↩

138. 138.

     Id. ↩

139. 139.

     See Jackson, supra note 59, at 446. ↩

140. 140.

     Id. at 441. ↩

141. 141.

     Id. at 449. ↩

142. 142.

     Id. ↩

143. 143.

     Id.

     (“A military commander […] shall be criminally responsible for crimes […] committed by forces under his or her effective command and control […] as a result of his or her failure to exercise control properly over such forces […]”) (emphasis added). ↩

144. 144.

     Id.; see Separate Opinion of Wyngaert & Morrison, supra note 102, ¶ 51 n.40. ↩

145. 145.

     Rome Statute, supra note 1, at Art. 128.

     (“The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.”). ↩

146. 146.

     See Jackson, supra note 59, at 449–50.

     (The relevant clause in the Chinese text “如果未对 […] 适当行使控制” translated to English, means “if he or she failed to exercise control properly over such forces”; in the French text, the relevant clause “lorsqu’il ou elle n’a pas exercé le contrôle” means “when he or she did not exercise control”). ↩

147. 147.

     Id. at 448; Vienna Convention on the Law of Treaties, Art. 33, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

148. 148.

     Jackson, supra note 59 at 450. ↩

149. 149.

     Bemba Appeals Chamber Dissent, supra note 126, ¶ 341. ↩

150. 150.

     Id. ↩

151. 151.

     Id. ↩

152. 152.

     Rome Statute, supra note 1, at Art. 25(3)(d)(i).

     (“In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court […]”). ↩

153. 153.

     Bemba Appeals Chamber Dissent, supra note 126, ¶ 331. ↩

154. 154.

     See Jens David Ohlin, Joint Intentions to Commit International Crimes, Cornell L. Faculty Pub., Paper 169, 32 (Jan. 1, 2011), available online. ↩

155. 155.

     Id. ↩

156. 156.

     Bemba Appeals Chamber Dissent, supra note 126, ¶ 265. ↩

157. 157.

     See Separate Opinion of Wyngaert & Morrison, supra note 102, ¶ 40. ↩

158. 158.

     Id. ¶ 38. ↩

159. 159.

     Id. ¶ 43. ↩

160. 160.

     See Jackson, supra note 59, at 453. ↩

161. 161.

     Id. ↩

162. 162.

     See Section III(B) of this comment for elaboration: in the debate between the concurring opinion of Eboe-Osuji and the separate opinion of Wyngaert and Morrison. ↩

163. 163.

     compare Jackson, supra note 59, at 446. ↩

164. 164.

     Id. ↩

165. 165.

     Id. ↩

166. 166.

     Id. ↩

167. 167.

     Compare the notion of remote commander in the Bemba Appeals Chamber Judgment, supra note 2, ¶ 171. ↩

It was also universally understood, without much contention, that the Appeals Chamber would not reassess the evidence de novo when a factual error was alleged by a defendant. Again deferring to ad hoc tribunal jurisprudence, the Lubanga court stated that “[t]he Appeals Chamber will not assess the evidence de novo with a view to determining whether it would have reached the same factual conclusion as the Trial Chamber” and that it would assess alleged factual errors on appeal in light of the principles laid out in previous decisions from the Appeals Chambers of the ICTY and other ad hoc tribunals.5 The Appeals Chamber was not to substitute its judgment of the facts in place of the judgment by the Trial Chamber unless it could not discern how the Trial Chamber reasonably reached that judgment based on the evidence it considered in the judgment.6

In this case, the Majority recognized and stated that they should not, and would not, review the evidence de novo. The Appeals Chamber stated that “it will determine whether a reasonable trial chamber properly directing itself could have been satisfied beyond reasonable doubt as to the finding in question, based on the evidence that was before it.”7 The Majority also recognized that the Trial Chamber has typically been afforded a measure of deference toward the Trial Chamber’s findings. However, they did not feel that blindly giving deference to the Trial Chamber was a good idea, stating that “the idea of a margin of deference to the factual findings of the trial chamber must be approached with extreme caution.”8 The Majority thus altered the standard of review to:

The Appeals Chamber is of the opinion that it may interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice, and not “only in the case where [the Appeals Chamber] cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it[.]9

In particular, the Majority stressed that the Trial Chamber must make findings of fact to the standard of proof of “beyond a reasonable doubt” as to any facts that correspond to the elements of each charged crime and the mode of liability, stating that ultimately the Trial Chamber’s finding of facts beyond a reasonable doubt must be “clear and unassailable.”10

In this regard, the Majority stated that it was the prerogative of the Appeals Chamber to examine not only the evidence relied on by the Trial Chamber to make a factual finding, but also their reasoning to ensure to ensure it was clear and unassailable:

[I]f the supporting evidence is, on its face, weak, or if there is significant contradictory evidence, deficiencies in the trial chamber’s reasoning as to why it found that evidence persuasive may lead the Appeals Chamber to conclude that the finding in question was such that no reasonable trier of fact could have reached. Nevertheless, the emphasis of the Appeals Chamber’s assessment is on the substance: whether the evidence was such as to allow a reasonable trial chamber to reach the finding it did beyond reasonable doubt.11

In evaluating a piece of evidence, therefore, the Majority looked at the source of the evidence as well as the Trial Chamber’s reasoning in accepting that evidence as true beyond a reasonable doubt. For circumstantial evidence, conflicting evidence, or evidence of inherently low probative value, the Majority felt greater scrutiny was deserved, citing the following passage from the corollary appeal judgment in Bemba et al.:

Where a factual finding is based on an inference drawn from circumstantial evidence, the finding is only established beyond reasonable doubt if it was the only reasonable conclusion that could be drawn from the evidence…. If there is another conclusion reasonably open from the evidence, and which is consistent with the innocence of the accused, he or she must be acquitted. For alleged errors of fact in relation to factual findings that were based on inferences drawn from circumstantial evidence, the Appeals Chamber will therefore…. consider whether no reasonable trier of fact could have concluded that the inference drawn was the only reasonable conclusion that could be drawn from the evidence.12

The Majority followed this up by citing the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in support of the argument that:

[I]f the supporting evidence is, on its face, weak, or if there is significant contradictory evidence, deficiencies in the trial chamber’s reasoning as to why it found that evidence persuasive may lead the Appeals Chamber to conclude that the finding in question was such that no reasonable trier of fact could have reached.13

Therefore, the Majority decided to look not only at the evidence behind the Trial Chamber’s factual findings but also the source of the evidence, it’s reliability, and the reasoning the Trial Chamber used in finding it factual. Based on the evidence and reasoning supporting it, the Majority held that “when the Appeals Chamber is able to identify findings that can reasonably be called into doubt, it must overturn them” because when a person can reasonably and objectively articulate serious doubts about the whether a given finding is accurate, this is a “strong indication that the trial chamber may not have respected the standard of proof and, accordingly, that an error of fact may have been made.”14 The Majority thus attempts to make a distinction between reviewing a case de novo, where the Appeals Chamber looks at all the evidence and makes a separate and distinct factual finding, and reviewing the Trial Chamber’s judgment to determine if the Trial Chamber adhered to the standard of proof of beyond a reasonable doubt. As Susana SáCouto explains:

[E]ven though [the Appeals Chamber] reviewed the record itself rather than rely on the trial chamber’s assessment, it did not assess anew all the evidence in the record.15

Though the distinction between these two standards is difficult to ascertain, the Majority’s standard of “[The Appeals Chamber] may interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice” is undoubtably a far more defendant-friendly standard than the previous standard of “only in the case where [the Appeals Chamber] cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it.”16

Although the Bemba Appeals Chamber Judgment does not really explain the reasoning for the departure, all three judges in the majority attempt to do so more explicitly in their Separate Opinions. Judge Christine Van den Wyngaert and Judge Howard Morrison in their opinion lay out two main reasons for the standard set out by the Majority: a more strict adherence to the standard of proof of “beyond a reasonable doubt,” and the failure of Trial Chambers to fulfill the requirement of Article 74(5) of the Rome Statute to give a “full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions.”17 Speaking to the standard of proof, the judges begin their opinion by noting that the difference in how the Majority and Dissent evaluate the Trial Chamber’s Conviction Decision is “not just a matter of difference of opinion, but appears to be a fundamental difference in the way we look at our mandates as international judges.”18 Stating the Majority seemed to place more importance than the Dissent on the strict application of the burden of proof, Judges Wyngaert and Morrison admitted that while this strict application might result in more guilty defendants being set free:

[W]e believe that they are the price that must be paid in order to uphold fundamental principles of fairness and the integrity of the judicial process. Ending impunity is only meaningful if it happens in full accordance with the values and principles that underpin the criminal justice process in an open and democratic society. The presumption of innocence and the corresponding benefit of the doubt in favour of the accused are central to our understanding of the rule of law. We therefore see it as our duty as appellate judges to intervene if we identify significant problems with the manner in which a Trial Chamber has analysed the evidence or applied the standard of proof.19

The Majority in this way is adhering to the ideal expressed by Sir William Blackstone that “it is better that ten guilty persons escape than that one innocent suffer.”20 Judges Wyngaert and Morrison explained that the Judgment should be understood in the light the Majority wanted to ensure that “the judiciary can be relied upon to uphold the highest standards of quality, precision and accuracy.”21

The second reason Judges Wyngaert and Morrison give for the heightened standard of review is the opacity of the Conviction Decision; that is, the lack of detailed explanation or reasoning for the Trial Chamber’s factual findings as required under Article 74(5) of the Statute.22 The judges thus seemed to increase the scrutiny on the Trial Chamber’s factual findings whenever they deemed that finding was not “clear, comprehensive, and comprehensible.”23 They criticized the Trial Chamber’s reliance on hearsay evidence, procès-verbaux d’audition, and other circumstantial evidence without explaining why the inferences drawn from such evidence were the only possible reasonable inferences.24 Finding that there were other plausible inferences and explanations for some of the factual findings of the Trial Chamber, the judges decided they were “firmly of the view that many of the findings in the impugned Conviction Decision fail to reach [proof beyond a reasonable doubt]” and that the Appeals Chamber “cannot turn a blind eye to such obvious evidentiary problems on the basis of a deferential standard of review.”25

In another Separate Opinion, Judge Eboe-Osuji points out that the origins of the notion of appellate deference at the ICC was embraced from the jurisprudence of ad hoc tribunals such as the ICTY and ECCC and does not have its basis in the Rome Statute:26

[I]t must be observed that the Rome Statute does not suggest—let alone require—appellate deference to the factual findings of the Trial Chamber. Indeed, there are specific provisions of the Rome Statute the terms of which obstruct, at least, a clear view of appellate deference as a standard norm in final, merits appeals in this Court. Article 83(1) is one of them. It provides as follows: ‘For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber’ [emphasis added]. As there is no equivalent provision in their statutes, the case law of the ICTY and ICTR may have forged a mould of appellate deference that may not fit the specific circumstances of administration of justice at the ICC, as a direct product of construction of the Rome Statute [.]27

It seems thus that Judge Eboe-Osuji at least, and probably Judges Wyngaert and Morrison as well, do not read a level of appellate deference into the Rome Statute and therefore should not be bound by notions of appellate deference when it clashed with the notion of the presumption of innocence and protecting the rights of the accused.

Unlike the notion of ‘appellate deference’ which the Rome Statute does not provide for, the Statute specifically provides for the right of fair trial… Against that right, the notion of appellate deference becomes a difficult one where an appeal is lodged on the ground that the trial has been so unfair as to engage the risk of a miscarriage of justice, because the Trial Chamber made serious mistakes in the admission, appreciation and evaluation of the evidence. Where such a ground of appeal is engaged in a final appeal against conviction, it does seem to me wholly unsatisfactory—indeed counter-intuitive—to say that the ICC Appeals Chamber will defer to the views of the very Chamber whose proceedings, verdict or findings formed the very basis of the appeal, as the gravamen of the complaint of unfair trial.28

It is for this reason that the Majority decided to change the standard of appellate review in Bemba to “[The Appeals Chamber] may interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice.”

One major question left unanswered by the Majority, however, is what exactly is meant by a miscarriage of justice. Mentioned just once in the body of the Majority’s opinion, the phrase is given slightly more light in Judge Eboe-Osuji’s Separate Opinion but is still left undefined. Though the term is not mentioned a single time in Judge Wyngaert and Judge Morrison’s Separate Opinion, their opinion provides perhaps the best glimpse into what a “miscarriage of justice” may be: “if [Appeals Chamber] identify significant problems with the manner in which a Trial Chamber has analysed the evidence or applied the standard of proof.”29 Thus, it appears that whenever the Appeals Chamber believes a reasonable person could draw a different conclusion from the evidence, they are not only allowed but obliged to interfere and reverse.

III. How Does This Standard Affect How the Office of the Prosecutor Operates?

This comment will now turn its attention to how this announcement of this new standard of appellate review will affect the various aspects of the International Criminal Court going forward with subsequent cases, beginning with the Office of the Prosecutor. The Office of the Prosecutor is being addressed first because, frankly, this is the aspect of the ICC that has the fewest options for change within the legal system. The Office of the Prosecutor will be much more affected on an operational basis by the Appeals Chamber’s holdings regarding the Pre-Trials Chamber and the confirmation of charges process and standard. However, that part of the holding would require far too much time to analyze here, so this comment will stick to the way in which the new standard of appellate review affects the Office of the Prosecutor.

This new standard (if it holds with future Appeals Chambers) will undoubtably make it more difficult for the prosecutor to secure and maintain a conviction. Not only will Trial Chamber probably require slightly more (or slightly better) evidence to convict, the Appeals Chamber can now disturb any of the Trial Chamber’s factual findings they believe did not rise to the level of proof beyond a reasonable doubt. Whether this results in more future acquittals on appeal, as in this case, or simply in more cases being remanded back to the Trial Chamber, only time will tell. However, some critics have already decried the new appellate standard as being unreasonably difficult on the prosecution, with one commentator going so far as to say that:

The Majority’s new appellate review standard is thus not only unprecedented, it would make ICC convictions nearly impossible.30

The biggest impact the Bemba decision may have on the Office of the Prosecutor may have nothing at all to do with the actual legal workings of the ICC; rather, the way the Office of the Prosecutor investigates current and future cases may be the biggest impact. Many commentators have criticized the Office of the Prosecutor’s approach to investigation and handling of the Bemba case from start to finish, with one stating that Bemba’s acquittal was “in no small measure due to prosecutorial overreach and ineffectiveness.”31 Specifically, the Office of the Prosecutor’s investigative strategy under former prosecutor Louis Moreno Ocampo (under whom the investigation into Bemba began) has been criticized for its “light-touch” strategy focused on building cases quickly in the early years of the ICC.32 Investigation reportedly relied too heavily on international assistance and information that was unsubstantiated by their own investigation, invested only in low-intensity and short investigations, and at times failed to collect direct victim testimony.33,34 According to Thijs Bouwknegt:

It looks like the prosecution tried a lucky shot with this case. They thought it would be easy to prove and it wasn’t and they should draw a lesson from that[.]35

It is clear that if it hasn’t already, the Office of the Prosecutor will have to change how they investigate these crimes to include more reliable evidence and more fully-developed cases. In the words of Fritz Streiff:

This spectrum of commentaries [about the prosecution’s investigative shortcomings] thus draws attention to the idea that the majority, at least partially, disciplined the OTP for its early-years strategy.36

IV. How Does This Standard Affect How the Trial Chamber Operates?

Of all the parts of the ICC that will be affected by the Bemba decision, the Trial Chamber will perhaps be the hardest hit. The Appeal Chamber, specifically Judge Eboe-Osuji, was very critical of the Trial Chamber’s Conviction Decision, both in its application of the standard of proof and the extend to which it reasonably explained its factual findings and evidential rulings. The Majority decision noted that:

[A]rticle 74(5) of the Statute requires the trial chamber to provide ‘a full and reasoned statement of [its] findings on the evidence and conclusions.’ If a decision under article 74 of the Statute does not completely comply with this requirement, this amounts to a procedural error.37

Judge Eboe-Osuji in his separate opinion wrote that he:

[S]aw no such clear analysis in the Trial Judgment—nor, for that matter, that the revealed evidence would sustain it. In the absence of such clear analysis (especially when the charges are so grave as here), I do not accept it as correct that the Appeals Chamber should, through a methodised theory of ‘appellate deference,’ consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed.38

Judge Eboe-Osuji also rejected the recent Appeals Chamber ruling that stated the Trial Chamber was free to decline to make any ruling at all on the admissibility of evidence.39 Tying in the Majority’s preference for greater scrutiny on the Trial Chamber’s evaluation of evidence, Judge Eboe-Osuji states:

In any number of ways, the failure of the Trial Chamber to give ‘a full and reasoned statement of its findings on the evidence and conclusion’ in support of its decision on the guilt or innocence of the accused, as required in article 74(5), does bear on concerns indicated in article 83(2). For instance, the Trial Chamber may have used evidence in a manner that was ‘unfair in a way that affected the reliability of the decision or sentence’ and undermined the fairness of the trial, but failed to make that apparent to the accused by refusing fully to explain how it resolved issues raised (pursuant to rule 64) against the evidence. Indeed, the danger of miscarriage of justice in this way is quite immediate, given the overly convenient trend in the jurisprudence of the Appeals Chamber to accept a presumption that ‘the Trial Chamber evaluated all the evidence before it . . . . as long as there is no indication that [it] completely disregarded any particular piece of evidence.’40

Some commentators have taken a similarly bleak view of the quality of the Trial Chamber’s evaluation of evidence and reasoning while making factual findings. Michael Karnavas, an international criminal defense lawyer, in response to Judge Oboe-Osuji’s Separate Opinion said the following:

The approach (or more appropriately, tactic) of gratuitously refencing witnesses and documents that may be critical in undercutting an inference against the accused (while ignoring the substance of this evidence) is calculated. It is done to effectively make the trial judgment appeal-proof concerning errors of facts that are likely to be raised. What do I mean by this? The judges who engage in these tactics know that the Appeals Chamber is unlikely to conduct much, if any, analysis where the Defense argues that its evidence was not considered, if it can be shown somewhere (anywhere) and for whatever purpose, that there is a reference to the witness or document that the Defense claims was ignored by the Trial Chamber. Rather than digging into the record (cited by the Defense) to ascertain the witness’s testimony and how it may be critical to a finding—which may carry serious ramifications—the appellate judges will simply (and effortlessly) dispense with the alleged error by delphically pronouncing that the Trial Chamber obviously considered this evidence.41

The judges of the Majority, along with Karnavas, seem to believe that the new appellate standard of review announced by the Majority will force the Trial Chamber to consider more carefully and thoroughly evidence and witnesses presented by the defense to evaluate whether it creates a reasonable doubt as to guilt. More importantly, the Majority clearly expects that subsequent conviction decisions from the Trial Chamber will clearly and thoroughly articulate their reasons for any and all factual findings, including how the Trial Chamber considered defense evidence and the reasoning for dismissing or not giving weight (or minimal weight) to any pieces of evidence. This will without a doubt increase the workload on the Trial Chamber, but hopefully (in the minds of Karnavas and others) will also increase the accuracy and reliability of the Trial Chamber’s decisions as they have to articulate their reasoning and rulings on evidence admissibility. This effect will likely be compounded by the Trial Chamber judges knowing that the Appeals Chamber will no longer be giving them the same level of deference on factual issues that they were previously afforded.

All of the above analysis assumes that this standard of appellate review will continue to be used by subsequent judgments from the Appeals Chamber, and that the Trial Chambers will adhere to the assumption that this is the new standard. However, given the depth of negative reaction to the Bemba decision, there is a distinct possibility that the Trial Chamber tests this theory and gambles that subsequent Appeals Chambers revert back to the old standard of appellate review and deference to the factual findings of the Trial Chamber, in which case there may not be much significant change in the way the Trial Chamber operates until after the next Appeals Chamber judgment articulating the standard for appellate review.

V. How Does This Standard Affect How the Appeals Chamber Operates?

To borrow that old law school cliché, the best answer to this one is “it depends”—it depends on whether this standard is followed subsequent Appeals Chambers or not. As mentioned above, there is a pretty good chance that future Appeals Chambers revert back to the old standard of interfering with a Trial Chamber’s factual finding “only in the case where [the Appeals Chamber] cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it.” This judgment was split along the thinnest of margins and the majority decision so narrow that the next Appeals Chamber may not feel constrained by the Bemba decision. As Joseph Powderly and Niamh Hayes:

Although a 3–2 split between Appeals Chamber judges and the issuance of separate or dissenting opinions is not unusual or unprecedented, it is particularly unfortunate in this case…because it appears to indicate a significant lack of agreement between the five judges on important issues of law[.]42

The judges split 3–2 on the appropriate standard of appellate review, split 2–2–1 on the appropriate disposition of the case—Judge Eboe-Osuji sided with the Majority in choosing to acquit rather than remand solely because he viewed an inconclusive judgment and the risk of Bemba being unfairly retried as the greater of the two evils, 2–2–1 on the issue of whether the contextual elements for crimes against humanity had been established, and 2–2–1 on the issue of what is the correct approach to causation as an element of command responsibility.43 Even though the issue of appropriate standard of review was the strongest concurrence between the judges in the Majority, the split decision, multiple separate and dissenting opinions, and overall confusing nature of the judgment may cause subsequent Appeals Chambers to ignore it altogether.

Powderly and Niamh also point out that, crucially, two of the five judges on the Appeals Chamber at the time of the Bemba decision have since left: Judge van den Wyngaert (for the Majority) and Judge Monageng (for the Minority), meaning there are now two judges on the Appeals Chamber who have never ruled on these issues for the ICC.44 How these judges rule on these issues, especially when there was no clear Majority in Bemba, is anybody’s guess. Assuming, for the sake of argument, that the standard of appellate review announced in Bemba stands, subsequent Appeals Chambers are affected only in the same way that the Bemba Appeals Chamber was affected: by needing to do a more thorough analysis of whether the Trial Chamber was reasonable in making factual findings beyond a reasonable doubt, such that the factual finding was the only plausible finding supported by the evidence.

VI. Is This an Appropriate Standard of Review?

There have been a wide range of responses from the legal and academic community since the Bemba decision was published in June, but the majority of responses seem to be negative. There seem to be three main reasons for the negative response from most commentators: a belief that the Trial Chamber is the only organ that should examine and rule on the totality of the evidence; a belief that the Majority should not have deviated from standard international criminal law jurisprudence; and the belief that the Bemba decision unwisely makes prosecutions for these heinous offenses harder and increases the risk of letting the guilty go free.

Jennifer Trahan called the decision a “significant and unexplained departure from prior jurisprudence” and argued that the Majority “applied an unworkable and arguably erroneous standard of appellate review.”45 Leila Nadya Sadat commented that it was “a significant departure from prior appellate practice at the Court and the ad hoc tribunals, and its value is not immediately obvious.”46 Sadat also pointed out that:

8 out of 11 ICC judges that heard this case concluded that the ICC’s rigorous thresholds of proof had been met, that the case could move forward, and 5 of the 8 judges agreed that he was ‘guilty beyond a reasonable doubt’ of serious and terrible crimes.47

However, others such as Streiff have pointed out that the Appeals Chamber is the end of the road for an accused, stating:

The Appeals Chamber is not like a national appeal court, in the sense that the ICC system does not offer an external review mechanism in the form of a highest or constitutional court or regional human rights tribunal, which an accused can turn to for arguments based on alleged violations of fair trial rights. This perspective sees the majority as taking a more activist approach in defense of the ideal of avoiding potential miscarriages of justice—in the present case and beyond. In the absence of an additional layer of appeal and review, the Appeals Chamber standard of review “needs to be designed in a way that protects the rights of the accused most efficiently.48

Karnavas seems to agree, saying that:

[F]or the first time (at least at the ICC), the Appeals Chamber articulated with clarity the expectations demanded upon appellate judges in ensuring that the interests of justice are met[.]49

Thus, though the majority of the academic and legal community seems to be against the new standard of appellate review announced in Bemba, there are some scholars who have welcomed and embraced the changes as much-needed protections for criminal defendants in the ICC.

Ultimately, the Majority probably arrived at the right decision regarding the standard of appellate review specifically when a defendant alleges factual error or insufficiency of evidence, though they did it in such a messy way that it is indeed a bitter pill to swallow. The Appeals Chamber should not be giving deference to the Trial Court’s evaluation of the evidence when one of the bases for appeal is that the Trial Court incorrectly and unreasonably evaluated the evidence. Further, it makes sense that if a reasonable and objective person can articulate a strong doubt as to a factual finding, that factual finding could not have met the burden of proof of “beyond a reasonable doubt,” and in these instances the benefit of the doubt must be given to the defendant if the ICC still wants to proclaim an ideal of “innocent until proven guilty.”

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 A 5, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ¶ 24 (AC, Dec. 1, 2014), available online, archived. ↩

2. 2.

   Id. ¶ 25. ↩

3. 3.

   Id. ¶ 27. ↩

4. 4.

   Id. ¶ 21. ↩

5. 5.

   Id. ¶ 27. ↩

6. 6.

   Id. ¶ 21. ↩

7. 7.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute ” ¶ 42 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩

8. 8.

   Id. ¶ 38. ↩

9. 9.

   Id. ¶ 40 (emphasis added). ↩

10. 10.

    Id. ¶¶ 42, 45. ↩

11. 11.

    Id. ¶ 44. ↩

12. 12.

    The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13-2275-Red, Judgment on the appeal, ¶ 868, (AC, Mar. 8, 2018) [hereinafter Bemba Corollary Appeal Judgment], available online, archived. ↩

13. 13.

    Bemba Appeals Chamber Judgment, supra note 7, ¶¶ 43–44. ↩

14. 14.

    Id. ¶¶ 45–46. ↩

15. 15.

    Susana SáCouto, The Impact of the Appeals Chamber Decision in Bemba: Impunity for Sexual and Gender-Based Crimes?, Int’l Just. Monitor (Jun. 22, 2018), available online, archived. ↩

16. 16.

    Bemba Appeals Chamber Judgment, supra note 7, ¶ 40. ↩

17. 17.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison ¶¶ 4–6 (AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison], available online, archived. ↩

18. 18.

    Id. ¶ 4. ↩

19. 19.

    Id. ¶ 5. ↩

20. 20.

    William Blackstone, Commentaries on the Laws of England 359 (1893), available online. ↩

21. 21.

    Separate Opinion of Wyngaert & Morrison, supra note 17, ¶ 5. ↩

22. 22.

    Id. ¶ 6. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ¶¶ 8–12. ↩

25. 25.

    Id. ¶ 14. ↩

26. 26.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji ¶¶ 42–43 (AC, Jun. 14, 2018) [hereinafter Concurring Opinion of Eboe-Osuji], available online, archived. ↩

27. 27.

    Id. ¶ 45. ↩

28. 28.

    Id. ¶ 48. ↩

29. 29.

    Separate Opinion of Wyngaert & Morrison, supra note 17, ¶ 5. ↩

30. 30.

    Jennifer Trahan, Bemba Acquittal Rests on Erroneous Application of Appellate Review Standard, Opinio Juris (Jun. 25, 2018), available online, archived. ↩

31. 31.

    Michael G. Karnavas, The Reversal of Bemba’s Conviction: What Went Wrong or Right?, Personal Blog (Jun. 19, 2018), available online, archived. ↩

32. 32.

    Fritz Streiff, The Bemba Acquittal: Checks and Balances at the International Criminal Court, Int’l Just. Monitor, Jul. 18, 2018, available online. ↩

33. 33.

    Id. ↩

34. 34.

    Janet H. Anderson, Ocampo’s Shadow Still Hangs Over the ICC, Int’l Just. Tribune, Jun. 18, 2018, available online, archived. ↩

35. 35.

    Id. ↩

36. 36.

    Streiff, supra note 32. ↩

37. 37.

    Bemba Appeals Chamber Judgment, ¶ 49. ↩

38. 38.

    Concurring Opinion of Eboe-Osuji, supra note 26, ¶ 11. ↩

39. 39.

    Id. ¶ 293. ↩

40. 40.

    Id. ¶¶ 306–07. ↩

41. 41.

    Karnavas, supra note 31. ↩

42. 42.

    Joseph Powderly & Niamh Hayes, The Bemba Appeal: A Fragmented Appeals Chamber Destablises the Law and Practice of the ICC, PhD Stud. in Hum. Rts. (Jun. 26, 2018), available online, archived. ↩

43. 43.

    Id. ↩

44. 44.

    Id. ↩

45. 45.

    Trahan, supra note 30. ↩

46. 46.

    Leila Nadya Sadat, Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, EJIL Talk (Jun. 12, 2018), available online, archived. ↩

47. 47.

    Id. ↩

48. 48.

    Streiff, supra note 32. ↩

49. 49.

    Karnavas, supra note 31. ↩

A. The Majority Opinion

The Majority Opinion is a compromise majority written by Judge Van den Wyngaert and Judge Morrison and joined by Judge Eboe-Osuji. The Majority Opinion acquits Bemba while addressing problems with the Trial Court’s decision. The Majority Opinion is a narrow holding. The Dissenting Opinion criticized that the Majority Opinion didn’t articulate what constitutes all necessary and reasonable prevention of crimes committed under command responsibility and articulated inadequate reasons for overturning the Trial Court’s decision. However, the Majority Opinion is concerned with several points of the Trial Court and addressed them in the main decision.

The first of these concerns is a heightened awareness of post hoc rationalizations and hindsight bias. The Majority Opinion seems hyper aware that a piecemeal approach is better than a totality test because of how reasonable possible actions sound in the future, but further explains how abstract and unrealistic these could appear at the time.3

The second of these concerns is to discourage strict liability for commanders. The Majority Opinion clarifies that the commander should take only reasonable steps, rather than all steps. The Majority Opinion even justifies a possible cost-benefit analysis.4 The court further restricts its holding by saying that the court must take unique situations into account.5 In this case that included the action of Central African authorities, which were critical in carrying out Bemba’s actions.

The third of these concerns is to justify the motivation intent nexus. This discussion was around the fact that one main motivation Bemba had in trying to discipline and prevent his troops from committing crimes against humanity to maintain their reputation as a motivation for taking action.6 The Majority Opinion essentially deems intent as not being within the scope of the trial, further yet narrowing the ICC’s potential evidentiary scope.7 In this question, the Majority Opinion addressed a discussion of the French president and the International Criminal Tribunal for the former Yugoslavia (ICTY) that seemed to invoke the Africa bias question, where there potentially could be a bias against commanders like Bemba that might not be present to commanders elsewhere.8 Further, this question also appears to be a more general concern with deterring actions that future commanders might have. The concern around public perception of troops and the regime more generally is incredibly important. This is especially true in regions where maintaining legitimacy is an increasing problem, in much of the developing world. By chilling that motivation the court might effectively dismantle one of its better general deterrent tools. However, even on this question, the Majority narrows their decision by dismissing the motivational evidence as circumstantial.

This decision comes to the narrowest grounds possible to achieve consensus. Three judges joined the decision, but Judge Eboe-Osuji wrote a Concurring Opinion, potentially only joining the Majority Opinion to avoid an evenly split decision. Judge Van den Wyngaert and Judge Morrison wrote a Separate Opinion to supplement the Majority Opinion, which is discussed in the next section.

B. The Separate Opinion

Two judges from the Majority Opinion, Judge Van den Wyngaert and Judge Morrison wrote a Separate Opinion to explain and support, in plainer terms, their opinion of the both the Trial Court decision and the Dissenting Opinion. This decision was both more accessible to normal readers, and offered different insights and a background context with which to read the Majority Opinion.

An interesting aspect of the Separate Opinion is the discussion of dissents in general. The Separate Opinion states that:

[D]espite our best efforts, the judges in this Appeal have not been able to reach unanimity, we accept that it is a fact of judicial life that judges do not always agree.9

The Separate Opinion states that separate opinions are more common in national courts but even more understandable in international courts due to the multitude of legal backgrounds of the judges themselves.10 This is compounded with the “constructive ambiguities” built into the Rome Statute.11 They explain the ICTY and the International Court of Justice (ICJ) faced similar problems. Further, they explain that the cause of the disagreements between the judges is not rooted in one side being right and the other side being wrong, but rather in different judges from different backgrounds placing different emphasis on burdens and standards of proof.12 Though stating that one side places “more emphasis on compliance with due process norms that are essential to protecting the rights of the accused” which may sound rhetorically harsh, it does accurately portray the pluralistic opinions that make up the ICC.13 Thus, through this initial discussion, two judges in the Majority Opinion seem self aware that the decision will be met with backlash.

The Separate Opinion goes on to explain the problems with the Trial Court’s and the Dissent’s view. It uses somewhat sweeping language stating that letting someone who is guilty go is “the price that must be paid in order to uphold fundamental principles of fairness and the integrity of the judicial process.”14 This burden of fairness and evidence is what distinguishes courts from NGOs, journalists, and special commissions.15 The Separate Opinion goes so far as to cite “fake news” to ground the discussion in the context of contemporary issues facing governments around the world more generally.16 On the highest level, the Separate Opinion describes the backdrop with which the opinion should be read.

More specifically, the Separate Opinion echoes in a clearer manner major points from the Majority Opinion. The judges have “deep concern” with the Trial Courts application of standards and treatment of specific pieces of evidence and hearsay.17 The Separate Opinion further articulates that the judges “disagree fundamentally” with the lack of clarity and approach of the Trial Court.18 It invokes a heavy criticism of the Trial Court’s procedure without adding any new substantive guidance. This indicates that the Majority is articulating more what they don’t want the standard to be rather than what they do want.

The Separate Opinion additionally offers “views on points that were not developed in the judgment.”19 The judges clarify that command responsibility is not strict liability and that a commander shouldn’t have to micro-manage their subordinates.20 Further, the Separate Opinion tries to confront an implicit bias to want to hold the leadership accountable and “always ascribe to them the highest levels of moral and legal culpability.”21 The Separate Opinion describes how this tendency should be avoided because there is a chain of command and shared responsibility.22 The Separate Opinion grounds this discussion by clarifying the difference between specific and general knowledge, and explains the difference between known and should have known standards. The judges describe the importance of clarity in laying out the charges and avoiding lumping everything together as the Trial Court did.23 The Separate Opinion invokes an analogy to the forest and the trees with respect to identifying an attack against a civilian population. The Separate Opinion also clarifies its problem with the evidence used in the case. It states that weak documentary evidence plus weak testimonial evidence does not equate to stronger forms of evidence. This “holistic approach” is a manifestation of the bias discussed above and is problematic because, even if a case looked strong in the aggregate, the sum can’t be greater than its individual parts.24

The Separate Opinion concludes by appealing to the goals of the court more generally. It states that they “are not blind to the human drama” but that emotional considerations cannot be taken into account in their decision.25 They seem to justify their decision broadly but don’t articulate a test for command responsibility, and narrow the claim by stating the unique situations warrant ad-hoc evidentiary tests in similar situations.

C. The Dissenting Opinion

The dissent conducts much longer review of both the Trial Court and Appeals Court opinions. While conducting their own de novo review of the Trial Court’s decision, Judge Monageng and Judge Hofmański criticize the opinion of the Majority Opinion. The Dissent criticizes de novo review of the Trial Court because the Trial Court had much more exposure to evidence.26 The Dissent attempts to strike a common ground with the other opinions through stating that the rules for necessary and reasonable tests and should or could have done tests are both case specific, conceding that unique situations must be considered. However, the Dissenting Opinion criticizes the Majority Opinion for not stating its own test for these variables. The Dissent is critical of the piecemeal approach, and further advocates for a more holistic approach to the specific cases. The Dissent points out inconsistencies within the Majority Opinion’s discussion of the holistic approach such as stating that there is a paradox with the Majority Opinion’s assertion that although a list of specific crimes is important, the specific number of crimes doesn’t necessarily matter.27

In addition to going through the potential inconsistencies of the Majority Opinion, the Dissent goes through a very transparent assessment of the evidence presented at trial. Through presenting the evidence in this way, the Dissenting Opinion essentially reconstructed the evidence with its own interpretation of how the evidence fits into painting a broader picture. Whereas the Majority Opinion state that combining circumstantial or incomplete evidence to paint a broad picture isn’t permissible, the Dissent seems more comfortable with the approach and potentially a further reach for the ICC to prosecute a broader array of crimes.

D. The Concurring Opinion

Judge Eboe-Osuji wrote a concurring opinion, while signing onto the Majority Opinion in order to reach a decision. The Concurring Opinion begins with a quote by Anthony Carmona stating:

This perception that a conviction is an indication that the Court is doing its work, and that of an acquittal the reverse is true, must be disbanded. There is no such thing as an endemic right to a guilty verdict. The endemic right lies in a just verdict.28

Following this quotation, the Concurring Opinion has a section entitled The Crux of It which is a philosophical discussion of the court and its role more generally. In contrast with the narrowed holding of the Majority Opinion, this section seems to invoke a more generally applicable standard to the court. There is a discussion of the importance of tempering evidentiary bias and a caution that “in these things, the mind can begin to see what is not there.”29

The Concurring Opinion further emphasizes that the risk of post hoc rationalization is especially problematic in prosecutions of commanders. “Giving bloated significance to available evidence, in ingenious ways” is problematic given the Trial Court’s analysis.30 The Concurring Opinion further adds that appellate deference to this sort of evidentiary analysis would be “an Orwellian catch that ill-serves any criminal justice system that purports a right of appeal against convictions.”31 The Concurring Opinion then add that Bemba took actions against his troops, and that the explanations by the Trial Court to explain away these measures leaves him with doubts.32 Judge Eboe-Osuji concludes this forward to his opinion by saying that he will explain a different path of reasoning and supports a remanding of the case to the Trial Court.

The Concurring Opinion takes a broader approach to the way this decision should influence the court. Rather than rhetorically narrowing the decision to just the case, he appears to invoke general principles that should be applied to future cases not only in the ICC, but also in any criminal court. However, substantively, it is a more tempered approach than the Majority Opinion in that it seeks to send the case back to the Trial Court. Thus, the Concurring Opinion is more of a reprimanding of the specific methods of the Trial Court than a broadening of the decision for the court.

III. Different Visions for the ICC

The result of this case is four different detailed analyses of the situation the court grappled within the Bemba trial. The four different opinions, however, don’t just represent a divergence of the views on the Bemba case specifically, but also four potentially different views of the court more broadly. The language used in the different opinions seems to emphasize different levels of certainty with how this opinion should be treated in the future. The Majority takes a narrow approach, as it is a product of a compromise majority. It neither articulates a test nor specifies what cases this standard of review should apply to other than stating that every situation is different. The Separate Opinion seems to further emphasize this view but also justifies the divergence of views. The Dissenting Opinion seeks to broaden the evidentiary standards to potentially broaden the reach of the court. The Concurring Opinions seeks to achieve something in the middle, neither condoning the standard nor supporting a full acquittal. Thus the court is left with an abstract and academic debate between the judges in the form of the four separate opinions.

The tension between the judges in this case could represent the tension among the judges more generally on the strategies and role of the ICC in the future. On the side of the Majority, the ICC’s strategy should be to narrow decisions to avoid politicization. The Majority makes no decision on the test yet acquits Bemba and potentially seeks to assess specific unique situations in the future. The Dissent seeks to broaden the reach of the court and the holding. The Concurrence seeks to strike a balance somewhere in the middle. Therefore, the visions of the court span from a narrow view to a broad view. All of the views are strategies of a court that increasingly politicized.

A. A Narrow Vision

The Majority seeks to take the narrowest view of the case. This could reflect a narrow view of the ICC’s role more generally. Their view follows the black letter law the most strictly and likely seeks to avoid overreach of the court.

A useful framework with which to view the Majority Opinion is through the Marks rule from United States domestic courts. In the Supreme Court, in order to reach a decision when there is no majority, rulings are read on the narrowest possible grounds. In this case the there is no majority view on the opinion. President Judge Eboe-Osuji joined the majority in order to create a rule. However, when he did so, the power of that ruling narrowed. Much like the ICC acquitting a head of state of war crimes, the Supreme Court makes binding decisions on very important issues. The possible implications of a decision are far reaching even in the absence of binding precedent.

In Bemba a similar situation confronted the court. The combined opinion is the Majority Opinion, however the true attitudes of the judges are reflected in the Separate Opinion and the Concurring Opinion, therefore it is not entirely a silent acquiescence to majority. Naturally, the President of the court Judge Eboe-Osuji is seeking to maintain the legitimacy of the Appeals Court through having any majority decision, and amended his opinion to create an opinion.

The Marks rule in the United States is not without its criticism.33 The Marks rule creates precedent because the justices are in the easiest position to do make those decisions. The narrowest grounds of the case are the general rule that is created, even if that is not the majority view.

[The] rule responds to the Court’s failure to coalesce around a majority rationale by elevating a minority or outlier view to precedential status.34

This changes incentives for judges.35 Rather than compromising, singular judges stake out positions that take the narrowest view of the case. This could be the case in the Bemba decision, with only two judges believing that Bemba should be acquitted without remanding to the Trial Court, the smallest majority decided the case. However, the case decided only that Bemba wasn’t proven guilty in the Trial Court proceedings. It didn’t articulate a test for command responsibility nor go further to clarify future courses of action for the Trial Court or the Office of the Prosecutor.

The Bemba case falls under a particular sub-set of compromise seen under the Marks rule. The logical subset approach is when the rule of the court is logically the narrowest possible rule that is achieved in the decision.36 In the Bemba case there was an array of opinions, upholding the evidentiary approaches of the Trial Court, sending the case back to the Trial Court to revise the decision because of problems with the Trial Court approach, and acquitting Bemba because of the approaches taken by the Trial Court. Three members of the court agreed that the Trial Court was in error. Of those three two believed that Bemba should be acquitted and one believed the case should be remanded, where the Trial Court would revise its decision to make a rule. In this case the narrowest possible outcome was the one taken, where no general rule was made and Bemba was acquitted without indication as to a new test the Trial Court or the Office of the Prosecutor should treat similar cases in the future.

The Marks rule is criticized in the United States context, but whether this is an advantageous method of reaching opinions for the ICC is yet to be seen.37 In the United States, decisions of the court have binding precedential effect upon future opinions. In contrast, though the ICC strives for consistency among its opinions, its opinions do not have binding precedential effect. Because of this difference, the use of this rule might be beneficial because of the pluralistic group of judges from different backgrounds. Because the decisions don’t create binding precedent, the lack of clarity of the decisions is less damaging than in the United States system. Further, where there are disagreements, the narrowest possible conclusions could avoid evenly split decisions.

It is likely that the Judge Van den Wyngaert and Judge Morrison are more comfortable with this vision for the court. Where decisions are naturally controversial, the court will likely create very narrow opinions. It is possibly better to risk under-reaching than overreaching. The narrowest possible decisions of the court might avoid taking political actions. Yet, paradoxically, this vision for the court is political itself. The Majority seems to believe that the court shouldn’t try to take larger stances, which could create rules and global norms. The court now is confronting many issues, many of which are discussed on this forum like issues of gathering evidence, prosecuting crimes of mass rape and sexual and gender based violence, and the Africa bias issue. Where these controversial subjects confront the court, a Marks rule framework approach to Appeals Decisions might be the best way for the court to gain legitimacy in hard cases.

Judge Eboe-Osuji also seems to prefer under-reaching than overreaching. It is understandable, as the President of the court, that reaching any majority conclusion, even the narrowest opinion that the Trial Court was in error is the most important thing for the court at this time. Maintaining the legitimacy of opinions through reaching majority is consistent across all domestic and international courts. It is likely that taking a more black and white approach to the law, rather than a more activist approach, is the course of action the President sees fit for the court at this time. Whether this strategy is good for the court is unclear. It does seem, however, that the President is sending the clearest message to the Trial Court. In light of the potential issues brought by the Africa bias problem, creating post hoc rationalized lists of what was reasonable seemed to ring as condescending towards commanders in less developed contexts, where the court might not fully understand the constraints. This in tandem with Bemba’s reference to the ICTY and France’s president in the context of motivation being about reputation compounded this effect. Though Judge Eboe-Osuji sought to remand the case, acquitting, rather than giving the Trial Court the opportunity to internalize his criticisms was the compromise majority he saw as best for the court.

The Majority Opinion thus likely takes a more narrow approach to the reach of the court, avoiding taking a broad political stance which implicates the questions Africa bias, the evidentiary standards for mass rape, sexual and gender based crimes, and deterrence generally. This itself is likely a political consideration on behalf of the Majority. With more narrow decisions, and a less broad or political reach, then the court can quietly build legitimacy. The question becomes if the ICC can sidestep big questions. The Majority might not have the ability of sidestepping broader problems confronting the court. This is likely the chief concern of the Dissent, which is discussed in the next section.

B. A Broad Vision

The Dissent takes an approach that seems to envision a broad strategy for the court. The Dissent conducts an in depth analysis of the different pieces of evidence brought in the court while criticizing The Majority for articulating neither a rule nor a reason for over turning the trial court’s decision. The Dissent’s view of the evidentiary standards could give the court broader authority to convict leaders of crimes, especially in areas where communications barriers or command barriers are present.

The Dissent is also internalizing a larger problem with the decision more generally, which is that acquitting Bemba will send the wrong message and will not deter future criminals in “unique” positions of command. The dissent likely disagrees that the court can even issue narrow decisions without sending clear messages about what is tolerated by the ICC. This is why this decision could become problematic. With a view of the court that advocates for a broader reach, the decisions are more important and become more binary. The court can either take opportunities to expand its reach and further the norms of justice, or it will miss those opportunities, which will ultimately do the opposite. Thus, the Dissent takes a more proactive stance on asserting jurisdiction over crimes to further the legitimacy of the court whereas the Majority, alternatively, takes a more reactive position for the court. Creating decisions only when absolutely needed.

Despite whichever view is the best vision for the court, the differences in opinion between the Majority, the Concurrence, and the Dissent seem to be expanding, yet this might not actually be the case. Dissents in the United States have been characterized as opinions that “tend to be less inhibited than the sober majority that they criticize” and “let off, steam, offer visionary meditations, and otherwise act in ways that the dissenters themselves would view as inappropriate in a ruling with a force of law.”38

As Judge Stephen Williams articulated, a dissenter is provocative […] and might inspire but cannot guide.39

Thus, dissents might make the dissenting judges appear further away from the actual decision than they are in reality because of the platform they are given in a Dissenting Opinion.

This is likely not as pronounced in the ICC, especially given that the Dissent in this case is doing much to maintain the legitimacy of the court. In United States courts giving precedential weight to dissents might create problems, however in international courts, dissents are not as potentially destructive.40 The radical dissents explanation theorizes that:

[R]adical dissents, both due to their content and their form, explicitly acknowledge the distinctly political character of mass atrocity and, following from that, recognize that any assessment of the responsibility for mass atrocity cannot escape being a political act to some extent.41

This assertion seems to explain the Dissent in the Bemba decision well. The Dissent rejects a “comfortably sanitized version of events that defy human understanding” and acknowledges the political reality confronting the court and the crimes.42

The Dissent in this case acknowledges that the court might not have the ability to take a non-political stance on the Bemba case, which brings up many of the issues confronting the court like sexual and gender based crimes, Africa bias, evidentiary standards, and deterrence. The Dissent is critical of the highly formalistic construction permitted by the court and its processes. It acknowledges that they must set the context for a crime of mass atrocity that is collective in nature. Creating this account of the crime with greater context required a reconstruction of the crimes and evidence supporting the rendition offered by the Trial Court. Rhetorically the Dissent seems directed at a wider constituency rather than only the Majority itself.

These types of disagreements are neither endemic to the ICC nor the Bemba trial, but have occurred in international criminal trials before. Justice Pal submitted a dissenting opinion at the International Military Tribunal for the Far East that created its own context for judging the crime.43 Similarly, Judge King in the Special Court for Sierra Leone created his own account of the evidence. Judge Lattanzi also submitted a dissent in the Šešelj case in the ICTY.44 Her dissent was highly critical of the majority and used strong terms like “with this Judgment we have been thrown back centuries into the past” and further likening the decision to that of a court in the Roman era.45 Under the radical dissent theory the dissents take a more holistic view, which is needed to prosecute a collective crime of this nature in the broader decision.

Dissents of this nature are supposed to communicate publicly and create legitimacy for the court by acknowledging the constraints of the court. The Majority Opinion likely did attempt to “artificially isolate”Bemba from the wider context of the crimes committed. Further the Dissent was able to explain inconsistencies at the appellate level by putting the “trial on trial”.46 Thus, the radical dissent explanation seems to be an appropriate lens with which to view the Dissent in Bemba. The question then becomes whether the Dissent correct in asserting that it is impossible to be apolitical in the cases of this nature brought to the court.

IV. Implications for the ICC

There are tradeoffs with respect to the visions and strategies of the court and the role of dissenting judges in general. Split decisions reduce the weight of the judgments and politically expose the court. However, the ability to dissent and write separate opinions creates more refined majority opinions, more academic and impartial ideas, and more latitude to make more politically charged decisions in clearer cases both factually and procedurally. Thus, on balance, split decisions might enable the court to adapt and better overcome the challenges confronting it.

Some view dissents as unnecessary and at coming of too high a cost to the legitimacy of the court.47 Dissents could impede upon the legitimacy of the court rather than furthering it. Critics of these dissents would likely advocate for “compromise majorities” whereby a majority opinion judges move from the beliefs to an average most common position to the case.48 Further these critics of dissents would like to see silent acquiescence, where there is no trace left of the debates and discussion necessary to reach such a majority. For instance, there have been cases in the past where the ICJ and the Permanent Court of International Justice (PCIJ) were split such as the Nuclear Weapons Advisory Opinion and the South West Africa Cases.49 After these cases there were problematic reverberations such as African states rejecting the court.50 It is also theorized that the dissatisfaction with ICJ increased after the decision.51 This is likely why Judge Eboe-Osuji created a compromise majority with a record of the disagreements it took to arrive at the position to avoid an evenly split decision. Though it is preferable to narrow a majority opinion rather than come to a completely split decision, the ability to have dissents is likely preferable to a total compromise majorities where all of the judge must agree.

Every judge on the Appeals Court likely has a different vision and means of attaining that vision for the court, and it is unclear which is correct given the constraints of the court at this time. The Bemba case was a mix of complex procedural and political issues. It is not the case where the Majority is apolitical and the Dissent is political, both sides are taking politics into account and viewing this decision in the broader context. The Majority may be narrowing the scope of the opinion to avoid potentially implicating other issues confronting the court and risking the court losing legitimacy because of overreach even despite the eventual criticism. Conversely, the Dissent may be trying to extend the legitimacy of the court by taking broader steps to make statements regarding issues related to sexual gender based violence. The Dissent seems to view the issue as more binary, where acquitting the crimes is to send a clear message, thus this case can’t realistically silo the issue like the Majority would probably want. This internal debate is likely the driver of the four opinions and a decision that will might not have much persuasive value in the future with a different “unique” case and set of facts.

However, the debate between these two visions for the court might justify the use of dissents and separate opinions over silently acquiesced compromise majority opinions. It is unclear which of these visions of the court is correct as it confronts all of the challenges presented by the Bemba case alone. The court is made out of a pluralistic group of judges from different backgrounds, some of which have a common law background, some of which don’t.52 Just as the Separate Opinion asserted, the judges on the Appeals Court are in a unique position to push norms and publish opinions in a way that NGOs and other entities cannot. The judges have an assumption of impartiality, thus creating a more impartial academic environment where many different ideas and visions are furthered in a single case might not be bad for the court at this time.

At the same time, there is damage to legitimacy when commanders are acquitted on a 3–2 narrow vote. Supporters of this opinion might see political insulation for the court with narrowed more less charged decisions as politically insulating the judges on the court as the best strategy for the court moving into the future.53 Unlike the dissents given at ad hoc tribunals, the ICC is a permanent court so the considerations must become iterative. Rather than litigating one major issue like the ICTY or the Nuremberg trials, the court will have to adapt over time. Thus, separate opinions and dissents are different in the context of a permanent court than a context of a temporary court. The Majority Opinion narrowed the decision in an effort to avoid making broader statements regarding the courts place more broadly. These political considerations for the court might have been taken in the shadow of the future challenges that have and will continue to confront the ICC.

A judge’s decisions are likely always complicated by their concerns for the politics of the court. Judges are not “bound always to say all and only what they believe.”54 Judges must strategically say what they don’t believe in order to reach a majority in such comprise majorities. This is readily observed in Separate Opinion’s opening section. In difficult cases, building consensus around a potentially non-optimal narrow view while allowing for a dissenting articulation can thus become a strategy for the court in difficult cases.

The process of building legitimacy of the court might have to include a debate amongst the judges around the appropriate vision for the court. In this case the Dissent had the ability to put forth its ideas of contextualizing crimes because there was a narrow Majority Opinion. The case created four different opinions of large differences rather than one compromise opinion, which would have stated even less than this opinion. In coming to a total compromise opinion, that academic discussion is forfeited, especially if the decision is reached in secrecy. However, with the ability to dissent and write separate opinion, even if the dissent or separate opinion had not been submitted, the omission of these is still a form of valuable judicial speech when a court rules in highly politicized subjects.55 One additional benefit to the dissents is the second order evidence that the dissent provided to the Majority.56 Because judges knew there are other opinions, this leads to refined arguments or consideration of different issues within the Trial Court’s decision.

Ignoring the political nature of the court and trying to insulate the judges political might have the opposite effect because of a lack of transparency with how decisions are reached. This is especially true at the appellate level, which is somewhat concerned with “reducing the total social cost of mistaken trial court decisions while economizing on the cost of appeals.”57 There is an inherent risk in creating decisions of this nature. The ability to justify the decision in the Separate Opinion likely provided further cover to the legitimacy of the court in the future.

The potential damage done by the separate decision is mitigated because the merits of the other arguments were acknowledged and the multiple dimensions of the case enabled the Dissent to construct an evidentiary review that they agreed with. Appeal decisions are concerned with multi-tiered analysis of whether Trial Court was in error and whether the Trial Court error materially impacted the court.58 Thus there is more exposure for the politicization of the court to come into the decision. Opinions on both of these points of analysis is critical to a decision, acknowledging potential disagreements among the judges on these different dimensions of the case further complicates the holding in the case. Because of these different points of disagreement, the different opinions rooted their criticism superficially in disputes of facts or of law rather than policy. The Majority Opinion disagreed on an evidentiary basis, while the Separate Opinion and especially the Concurring Opinion invoked more policy, which was not directed at the other judges, but rather to the international criminal justice community more generally. The divergence of opinions on policy while constricting material disagreements to evidence enables the court to maintain legitimacy whilst putting forth a variety of evidence and norms, which might inform future decisions.

V. Conclusion

The ICC’s decision in the Bemba Case might act as an inflection point of the court, showing the importance of separate opinions to the court. The appeals court found disagreement on multiple dimensions of the Bemba case: with procedure, with evidence, and most likely with the role of politics and the court. Yet the articulation of these different view points between the judges likely helps push norms forward while maintaining the legitimacy of the court through increasingly strict procedural discipline. Though the result of the case is not ideal, the case might not have been the best case for the court to make a landmark decision on this matter. The Appeals Court does not have the ability to choose the best cases to make its landmark decisions. The ability to dissent might have enabled the court to effectively wait for a different case, one that did not implicate so many of the court’s procedural and political challenges, to make a decision on the critical issues. Though dissents mitigate the effect of a decision, this serves as both a feature and bug. In the United State’s Supreme Court history dissents were both uncommon and discouraged until 1941, where there was a paradigm shift towards incorporating them.59 Rather than negatively affecting the court, it gave the court more political influence. The increase in dissents earlier gave a unanimous decision in Brown v. Board of Education more precedential and political weight later.60 Unlike the United States Supreme Court, the ICC Appeals Chamber neither creates binding precedent nor choose the cases used to make landmark decisions. This narrow verdict and array of different opinions might yet set the stage for a much more far-reaching definitive decision in a case less controversial for the court both politically and procedurally.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Leila Nadya Sadat, Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, EJIL Talk (Jun. 12, 2018), available online, archived. ↩

2. 2.

   Id. ↩

3. 3.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute ” (AC, Jun. 8, 2018) [hereinafter Majority Opinion], available online, archived. ↩

4. 4.

   Id. ¶ 67. ↩

5. 5.

   Id. ¶ 138. ↩

6. 6.

   Id. ¶ 150. ↩

7. 7.

   Id. ¶ 169. ↩

8. 8.

   Id. ↩

9. 9.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, ¶ 2 (AC, Jun. 8, 2018) [hereinafter Separate Opinion], available online, archived. ↩

10. 10.

    Id. ↩

11. 11.

    Id. ↩

12. 12.

    Id. ↩

13. 13.

    Id. ↩

14. 14.

    Id. ¶ 5. ↩

15. 15.

    Id. ↩

16. 16.

    Id. ↩

17. 17.

    Id. ¶ 14. ↩

18. 18.

    Id. ¶ 23. ↩

19. 19.

    Id. ¶ 32. ↩

20. 20.

    Id. ¶ 34. ↩

21. 21.

    Id. ¶ 35. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ¶ 49. ↩

24. 24.

    Id. ¶ 68. ↩

25. 25.

    Id. ¶ 75. ↩

26. 26.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, ¶ 47 (AC, Jun. 8, 2018) [hereinafter Dissenting Opinion], available online, archived. ↩

27. 27.

    Id. ¶ 94. ↩

28. 28.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji, ¶ 1 (AC, Jun. 14, 2018) [hereinafter Concurring Opinion], available online, archived. ↩

29. 29.

    Id. ¶ 10. ↩

30. 30.

    Id. ↩

31. 31.

    Id. ¶ 11. ↩

32. 32.

    Id. ¶ 15. ↩

33. 33.

    See Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1942 (2019), available online. ↩

34. 34.

    Id. at 22. ↩

35. 35.

    Id. at 24. ↩

36. 36.

    Id. at 28. ↩

37. 37.

    Id. at 50. ↩

38. 38.

    Id. at 37. ↩

39. 39.

    Id. ↩

40. 40.

    See Neha Jain, Radical Dissents in International Criminal Trials, 28 EJIL 1163 (Nov. 2017), available online, doi. ↩

41. 41.

    Id. at 1166. ↩

42. 42.

    Id. ↩

43. 43.

    Id. at 1174. ↩

44. 44.

    Id. at 1179. ↩

45. 45.

    Id. ↩

46. 46.

    Id. at 1186. ↩

47. 47.

    Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Geo. L.J. 381, 398 (Mar. 2000), paywall. ↩

48. 48.

    Re, supra note 33, at 45. ↩

49. 49.

    Dapo Akande, Cases in Which the ICJ / PCIJ Were Evenly Split, EJIL Talk (Sep. 10, 2012), available online. ↩

50. 50.

    Id. ↩

51. 51.

    Id. ↩

52. 52.

    Jain, supra note 40, at 1168. ↩

53. 53.

    Sadat & Carden, supra note 47. ↩

54. 54.

    Stephen J. Ellmann, The Rule of Law and the Achievement of Unanimity in Brown, 49 N.Y.L. Sch. L. Rev. 741, 746 (2005), available online. ↩

55. 55.

    Id. at 747. ↩

56. 56.

    Alex Stein, Law and Epistemology of Disagreement, 96 Wash. U. L. Rev. 51 (Sep. 18, 2018), paywall, archived. ↩

57. 57.

    Id. at 81. ↩

58. 58.

    Id. at 82. ↩

59. 59.

    See Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 Cornell L. Rev. 769 (2015), available online. ↩

60. 60.

    Id. at 808. ↩