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. ↩