II. The Bemba Acquittal

The Appeals Chamber acquitted Bemba on June 8, 2018, following ten years of trial. Criminal procedure of the ICC begins with an arrest warrant, followed by the arrest or surrender of the accused, a confirmation hearing at the Pre-Trial Chamber, a trial, and then a possible appeal. Bemba’s acquittal was based in part on the Majority’s ruling regarding article 74(2) of the Rome Statute and the scope of crimes which may be considered at trial. This section of the Comment provides a brief summary of the relevant portions of Bemba’s prosecution and the Appeals Chamber’s decision.

On June 15, 2009, the Pre-Trial Chamber confirmed charges against Bemba for crimes against humanity, rape as a war crime and crime against humanity, and pillaging.6 The Pre-Trial proceedings require a standard of proof of “substantial grounds to believe that the person committed the crime charged” in order to confirm the alleged charges as formulated by the Prosecutor in her discretion.7 For charges of crimes against humanity, the Pre-Trial Chamber confirmed:

[T]hat MLC soldiers killed civilians during the attack directed against the CAR civilian population carried out from on or about 26 October 2002 until 15 March 2003 [...] [and that] the Chamber finds that, as MLC soldiers moved in battle throughout the CAR, they killed civilians thus committing war crimes.8

The Pre-Trial Chamber made similar such confirmations for crimes of rape as a war crime and crimes against humanity and pillaging.9 The Pre-Trial Chamber confirmed these charges for Bemba, under a theory of command responsibility (article 28 of the Rome Statute), that the acts were carried out as a pattern of crimes committed by his subordinates in a neighboring country.10

Following the Pre-Trial confirmation, the Trial Chamber requested a second amended document containing the charges from the Prosecutor. Submitted on November 4, 2009, the Prosecutor included new locations where underlying criminal acts took place, and included the added phrase “including, but not limited to” as an indication of the non-exhaustive list of criminal acts.11 The Trial Chamber reviewed Bemba’s challenge to the additions, but determined that the Pre-Trial Chamber had not intended to limit the criminal acts to only those specifically confirmed at the Pre-Trial stage.12

Following hearings, the Trial Chamber convicted Bemba on charges of crimes against humanity, war crimes, and pillaging. The standard of proof at trial is that Court must be “convinced of the guilt of the accused beyond reasonable doubt,” a higher burden than at the Pre-Trial confirmation.13 Bemba’s conviction was based in part on underlying crimes which were not confirmed by the Pre-Trial Chamber during its initial proceeding or included in amended documents containing the charges, but which the Trial Chamber approved to be included through auxiliary documents. Responding to concerns about the scope of the charges under consideration by the Trial Chamber during its review, the Trial Conviction Decision states:

[T]he Pre-Trial Chamber ‘in particular, [drew] attention to’ certain events and evidence, but did not limit the charges to those particular events or that particular evidence.14

On appealing his conviction, Bemba argued that he was convicted using underlying criminal acts which fell beyond the scope of the charges confirmed in violation of article 74(2)’s “facts and circumstances” requirement.15 Notably, Bemba’s appeal was not based on a belief that he received insufficient notice of the crimes underlying his charges.16 His argument on appeal was strictly procedural and did not alleged he was prejudiced in the preparation of his defense. The Appeal’s Chamber Majority agreed that the crimes underlying Bemba’s conviction exceeded the “facts and circumstances” of the crimes confirmed by the Pre-Trial Chamber. Two separate opinions and a dissent were also written by the judges of the Appeals Chamber deliberating on the grounds of Bemba’s acquittal. The total of four separate opinions representing the varying viewpoints adopted by the ICC judiciary reflect on the proper role of the Pre-Trial Chamber in the confirmation of charges.

The Majority opinion, signed by Judge Christine Van den Wyngaert, Judge Chile Eboe-Osuji, and Judge Howard Morrison, affirmed the basis of Bemba’s appeal. It stated that the crimes underlying his conviction by the Trial Chamber exceeded the “facts and circumstances” of the Pre-Trial Chamber’s Confirmation of the Charges.17 The Majority was concerned that without further specificity the confirmed charges of murder, rape, and pillage would have a 141-day time range within a geographical area that spans 623,000 square kilometers.18 In their reasoning, the Majority repeatedly cited article 67 of the Rome Statute, regarding the rights of the accused, and Prosecutor v. Lubanga,19 a portion of whose appeal was based on article 67. In emphasizing these two sources of law, the Appeals Chamber indicates their concern for providing Bemba with sufficient notice to prepare his defense. Despite that, the Appeals Chamber acknowledges that:

[T]he present ground of appeal concerns the scope of the charges (article 74(2) of the Statute) and not whether Mr Bemba was informed in detail and sufficiently in advance of the charges on the basis of which he was convicted.20

Believing the language of the Pre-Trial Confirmation to be too broad,21 the Appeals Chamber determined, that:

Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient.22

The Appeals Chamber then reviewed the crimes confirmed by the Pre-Trial Chamber and those listed in the amended documents containing the charges, limiting the scope of the “facts and circumstances” to only those specific charges contained in those documents. With that reasoning, the Appeals Chamber found that only those eleven criminal incidences listed in the Pre-Trial Chamber’s Confirmation Decision and in the amended documents containing the charges could comprise the criminal acts underlying Bemba’s conviction. This limited the specific crimes under consideration to one murder, twenty rapes, and five pillages.

Despite the strict approach to determining “facts and circumstances” employed by the Majority, they state:

[T]he Appeals Chamber wishes to underline that this is not to say that adding specific criminal acts after confirmation would in all circumstances require an amendment to the charges—this is a question that may be left open for the purposes of disposing of the present ground of appeal; nevertheless, given the way in which the Prosecutor has pleaded the charges in the case at hand, this was the only course of action that would have allowed additional criminal acts to enter the scope of the trial.

However, it is unclear if this statement indicates the Court’s openness to other approaches, or whether their narrow approach is illustrative of their perception of the appropriate standard to determining the scope of the “facts and circumstances.”

The concurring separate opinions further illustrate the perspectives of the judges who make-up the Majority. The Majority opinion is presented as a compromise of their perspectives regarding the significance of article 74(2), the role of the Pre-Trial Chamber in ICC procedure, and the duty of the ICC as an institution. The Separate Opinion by Judge Van den Wyngaert and Judge Morrison articulates a stricter outlook on requirements of article 74(2). The Separate Opinion of Wyngaert & Morrison states the Pre-Trial Chamber is required to confirm all the underlying crimes the Prosecutor plans to bring against the accused at Trial.23 Emphasizing that in prosecuting mass acts of murder and rape it might be convenient to summarize acts within geographical or temporal parameters, the Separate Opinion of Wyngaert & Morrison asserts that, contrary to previous international criminal decisions, a command responsibility theory of liability does not decrease the specificity with which the underlying criminal charges must be alleged.24

In particular the Separate Opinion of Wyngaert & Morrison took issue with the characterization of the underlying criminal acts as “evidence” and not material facts to be established beyond a reasonable doubt.25 Fearing that a lack of specificity and complete confirmation of charges by the Pre-Trail Chamber would lead to a conviction of the accused based on abstract categories of crimes, the Separate Opinion of Wyngaert & Morrison stated that “merely illustrating by a number of ‘examples’, rather than on an exhaustive list of criminal acts” was unacceptable.26 The reasoning of the Separate Opinion of Wyngaert & Morrison more perceptibly intertwine the requirements of article 74(2) with the ICC’s notice requirements under article 67 of the Rome Statute. Repeatedly citing to the accused’s right to be informed in sufficient detail of the particulars if their offense and to allow the accused to prepare a meaningful defense, the Separate Opinion of Wyngaert & Morrison indicates its view that the Pre-Trial Chamber is a forum to inform the accused of all the evidence against them.27

In Judge Eboe-Osuji’s concurring opinion, he affirms the perspective of the Majority but emphasizes that the decision is not meant to limit the ability of the Trial Chamber to amend the charges, or to vary the indictment in a manner that may not amount to an amendment of a charge, after the commencement of trial.28 Judge Eboe-Osuji endorses a more flexible approach than the other judges of the Majority, asserting that it is for the Trial Chamber to determine when amendments to the indictments are permissible, even if late in the trial stage.29 Ultimately this determination will consider whether the interests of justice would permit the amendment to include additional crimes against the accused in the known facts and circumstances: Accounting for the needs of the accused, the victims, and the community as well as the need to avoid multiplicity of proceedings in the particular circumstances.30 His vision, therefore, is that while some of the underlying crimes which formed the basis of Bemba’s conviction were outside the facts and circumstances of the Pre-Trial Confirmation, this should not impede the functioning of ICC procedure to such an extent that each crime must be confirmed only by the Pre-Trial Chamber.

Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański promote a different perspective in their dissent. Believing that the purpose of Article 74(2) is to ensure “separation between the prosecutorial function of determining the scope of a case and the judicial function of fact-finding within the scope of the case brought by the Prosecutor,” the Bemba Appeals Chamber Dissent disagreed that the criminal acts considered at Bemba’s trial exceed the scope of the charges confirmed by the Pre-Trial Chamber. Article 74(2) is not concerned, in their view, with the level of detail of the charges, as even a broad factual scope for a case satisfies article 74(2) for the purposes of the Pre-Trial Confirmation procedure.31 Instead, the Pre-Trial Chamber is concerned with the congruence of the charges with the conviction. Any concern for providing the accused with notice is addressed through other provisions of the Rome Statute, such as the obligations of the Prosecutor to provide the accused with sufficient detail of specific criminal acts.

The viewpoints adopted by the members of the Appeals Chamber demonstrate the range of perspectives on the role of the Pre-Trial Chamber within the ICC. These viewpoints from Bemba’s acquittal frame the following analysis on the function of the Pre-Trial Chamber and how the Bemba ruling may impact ICC procedures.

III. Deliberations on the Purpose and Role of the Pre-Trial Chamber

The creation of the Pretrial Chamber is novel to the ICC, not previously used in any of the ad hoc tribunals. At the Pre-Trial stage, the Court holds a hearing to confirm the charges which the Prosecutor intends to pursue at trial.32 The scope of the charges brought before the Pre-Trial Chamber are at the Prosecutor’s discretion. Charges against the accused may be based on underlying acts, or the specific criminal acts such as the murder or rape of a particular victim.33 The Pre-Trial Chamber determines, based on the facts and evidence presented, “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.”34 Once the Pre-Trial Chamber confirms or rejects the charges under consideration, the case proceeds to Trial. The Trial Court’s decision must, under article 74(2), “not exceed the facts and circumstances described in the charges and any amendments to the charges.”35

Narrowing or expanding the scope of “facts and circumstances” in article 74(2) impacts how charges are confirmed by the Pre-Trial Chamber and how underlying crimes may be introduced for consideration to the Trial Chamber. Article 74(2) can be considered together with the requirement to provide notice to the accused due to article 74(2)’s influence on the Prosecutor’s ability to fulfill that obligation. However, too stringent requirements under article 74(2) may threaten to duplicate the requirements already contained in the Rome Statute’s article 67 regarding the rights of the accused.

A. The Duty to Inform

The duty to provide adequate notice to prepare a defense is a right enshrined in the Rome Statute as well as several human rights conventions.36 The duty to inform the accused of the charges and evidence alleged against him rests ultimately with the Prosecution. Notice requirements are contained in the Rome Statute, article 67, “Rights of the accused.” Specific provisions include articles 67(1)(a)–(b), respectively, addressing the obligation to ensure that the accused is “informed promptly and in detail of the nature, cause and content” of the charges and has “adequate time and facilities for preparation of the defense.”37

Recently, the ICC discussed the scope of article 67 in a case involving Thomas Lubanga Dyilo. On January 29, 2007, the Pre-Trial Chamber confirmed charges against Lubanga of war crimes for enlisting and conscripting children under the age of fifteen years and using them to participate in hostilities. The legal representative for the victims sought to add additional charges based on the facts already presented to the Court. Lubanga’s resulting appeal argued that he received insufficient detail about the charges against him.

The Court rejected his argument, stating that Lubanga failed to substantiate that the charges were insufficiently detailed. Regarding the underlying criminal acts, the Court held the Prosecutor is required to provide the accused with the date and location of the underlying act and identify the alleged victims to the greatest degree of specificity possible given the circumstances in order to allow them to effectively prepare their defense.38 The Court added that the details of the crimes did not need to come only from the Document Containing Charges, but that:

[A]ll documents that were designed to provide information about the charges, including auxiliary documents, must be considered to determine whether an accused was informed in sufficient detail of the charges.39

Additionally, the Appeals Chamber in Lubanga, affirmed that the power to define the scope of the charges brought to trial lies with the Prosecutor.40

The Bemba Majority repeatedly cited the holding of the Lubanga Appeal Judgment to argue that a narrower scope for the “facts and circumstances” of the charges confirmed by the Pre-Trial Chamber was needed. The Bemba Majority decision, while also based on concerns for the rights of the accused, alters the function of the Pre-Trial confirmation process to improve the accused’s condition under article 67 through an alteration to article 74(2). Responsibilities under the statutory provisions of the Rome Statute necessarily influence one another, however the Bemba Majority’s use of article 74(2) to improve the accused’s right under article 67 may result in additional burdens at other stages of an ICC persecution.

B. Purpose and Scope of the Pre-Trial Chamber

Despite the unique function of the Pre-Trial Chamber at the ICC, its purpose and utility remain debated as illustrated by the Majority, Separate, and Dissenting opinions in the Bemba Appeal. Looking to the drafting history of the Rome Statute identifies two goals of the confirmation process: First, for the Pre-Trial confirmation process to work as a check on the Prosecutor’s authority to determine the appropriate charges in the case and second, to protect the rights of the suspect.41

The perspective of the Bemba Appeals Chamber Dissent aligns with the first stated goal of the confirmation process and a narrow understanding for the role of the Pre-Trial Chamber. This view of the function of the Pre-Trial Chamber is to act a check on the power of the Prosecutor in defining the scope of the charges against the accused.42 Reading article 74(2) together with article 61(7)(a), regarding the standard of review for the confirmation of charges before trial, the role of the Pre-Trial Chamber is to establish only that there are adequate grounds to continue pursuing the conviction of the accused following their arrest or surrender to the ICC. The standard of review for the Pre-Trial Chamber, whether there are “sufficient grounds to believe that the person committed the crimes charged,” is not an exhaustive standard, requiring only demonstration of a substantial reason to confirm the charges as opposed to demonstrating the validity of each underlying criminal act.43

The Majority instead takes the perspective that the Pre-Trial Chamber is intended to maximize notice to the accused to best protect their rights. By reading article 74(2) of the Rome Statute in conjunction with article 67(1) regarding the rights of the accused to be promptly informed of the details of the charge and have adequate time to prepare their defense, the Majority affirmed that the individual events of each underlying crime of each charge should be confirmed by Pre-Trial Chamber. This vision for the function of the Pre-Trial Chamber prioritizes the rights of the individual in a criminal trial. Supporters contend that a trial can only be fair if the accused is provided with the facts of their charges in a manner which allows sufficient time to prepare his defense.44 Requiring the Pre-Trial Chamber to confirm all underlying crimes, or for the Prosecutor to submit an amendment, ensures the accused is fully informed of each crime for which he is allegedly responsible. Additionally, it establishes that for each crime, the Pre-Trial Chamber determined there to be substantial grounds to believe the accused perpetrated the crime, according to the burden of proof required at the Pre-Trial stage.45 Adhering to this standard also benefits the goal of judicial economy and preparation of facts and witnesses for the trial, identified by some commenters and judges at the ICC to be another purpose of the Pre-Trial procedure.46

However, requiring a high standard for article 74(2) may result in the Pre-Trial Chamber operating as a mini-trial.47 With the standard of proof at the Pre-Trial Chamber being “substantial grounds” compared to the Trial Chamber’s “beyond reasonable doubt” standard of proof, the Pre-Trial procedure risks pre-judging the outcome of the accused’s criminal case, contrary to what was intended by the confirmation process and article 66, requiring the presumption of innocence for the accused.48 According to the instructional guide for the ICC, the Pre-Trial confirmation of charges “is not a trial, but a pre-trial hearing.”49

Additionally, as the Bemba Appeals Chamber Dissent illustrates, there might not be a reason to prioritize article 61(7)(a) or article 67(1), as they need not conflict. Even if a Prosecutor decides to bring a broadly defined case, they still must list the specific criminal acts in order to comply with the accused’s right under 67(1)(a) to be informed of the details of the charge. In the case of Bemba, he made no allegation that these articles conflicted, as he never alleged he had insufficient notice to prepare his case. The stricter standard the Bemba Majority endorses for the scope of the crimes within the “facts and circumstances” of the charges confirmed by the Pre-Trial Chamber may then needlessly prioritize aligning article 74(2) with the notice requirements of article 67. Further, the Majority’s recommendation comes at the expense of the other values served by a broader interpretation of article 74(2).

IV. The Implications of a Higher Standard for Article 74(2) “Facts and Circumstances”

Invoking a stricter standard for article 74(2)’s requirements will improve notice provided to the accused of the crimes alleged against them. Such efforts by the ICC to improve procedures to uphold the ability of accused to properly prepare their defense are important for ensuring a fair criminal procedure. Especially, as might be the case in the ICC, when the crimes involve incidences which occurred thousands of miles from the location of trial and may require visiting remote locations to assemble witnesses and evidence. However, as Bemba did not assert a claim regarding the sufficiency of the notice he received, the adequacy of article 74(2) in the current ICC procedures has not been truly tested or challenged on that basis. It is therefore difficult to determine what the legacy will be of this decision.

A. Pragmatic Effects of the Bemba Appeals Chamber Decision

While a ruling of the Appeals Chamber is not considered binding under article 21(2) of the Rome Statute, the Bemba acquittal is the first case in which the Appeals Chamber addressed the scope of the charges under article 74(2). It may therefore carry added persuasive value in later cases. Additionally, while the Appeals Chamber qualified its ruling by stating that adding specific criminal acts after Pre-Trial confirmation might not in all cases require amendments to the charges, the Majority itself applied an enormously exacting analysis to determine which crimes fit into the facts and circumstances of the confirmed charges.50 The uncertainty of this proposition leaves future courts with little guidance except to follow the illustrated example of the Majority. The Majority’s application dictates that only those crimes which are included in the Pre-Trial Confirmation or an amended document containing the charges may be considered at Trial. This framework comports with a vision of the Pre-Trial Chamber which maximizes the rights of the accused but also threatens to distort ICC procedures by placing pressure elsewhere in the criminal trial process. Moreover, the burden of this ruling may cause the work of the Office of the Prosecutor to slow or halt as she seeks to comply with the stricter standard.

The Bemba Majority’s ruling will likely force the Office of the Prosecutor to shift the bulk of resources to the initial stages of the investigation. For future cases, this could even mean conducting the majority of the investigation prior to seeking arrest of the accused. Typically, the Office of the Prosecutor does not know when following the filing of the arrest warrant an accused will be in the custody of the court, which thereafter triggers necessary preparations for the Pre-Trial confirmation hearing. The Prosecutor must submit the document containing the charges thirty days before the date of the Pre-Trial confirmation hearing. The Pre-Trial Chamber must also analyze the underlying acts to determine whether they comply with the standard for confirmation within sixty days from the date the confirmation hearing ends. The established time constraints within ICC procedure before a case proceeds to the trial stage mean the Prosecutor may need to compile the charges and details of underlying crimes before issuing the arrest warrant.51 Despite the ruling not being binding, the threat of having another conviction overturned on appeal is likely enough to motivate the Prosecutor to abide by the Bemba Majority’s strict standard for “facts and circumstances” absent a clear indication the ruling will not be followed in subsequent cases.52

Another possible impact of the Bemba Majority’s decision to heighten article 74(2)’s requirements is an extended length of pre-trial detention for the accused as the Prosecutor adequately prepares the document containing the charges for the Pre-Trial hearing. Under article 61(1) of the Rome Statute, the Pre-Trial Confirmation hearing must occur within a “reasonable time” of the accused’s arrest or surrender.53 While strict procedural requirements exist dictating precisely how long before the Pre-Trial hearing the Prosecutor must submit the document containing the charges, there is no exact requirement for how long the accused’s detention may last before their first appearance before the Pre-Trial Chamber. Other provisions only hold that the accused is to be “tried without undue delay.”54 These provision fails to mandate firm guidelines for the length of detention permissible before the Pre-Trial Confirmation hearing. With a higher “facts and circumstances” standard for the charges confirmed at the Pre-trial hearing, the ICC may see the length the accused’s detention extend as the Prosecutor compiles the necessary evidence to prepare her case.

It is also possible that this ruling will have a particular impact on prosecutions of crimes of sexual and gender-based violence. This category of crime already faces difficulties in being prosecuted by the ICC due to the stigma associated with being a victim of sexual and gender-based violence and the necessary additional considerations of the Court in bringing witnesses to testify in these cases. While commentators have pointed out that the Bemba Appeals Chamber’s decision regarding article 28, command responsibility, will increase the of impunity for crimes of sexual and gender-based violence, a higher standard for the confirmation of charges under article 74(2) is likely to have a similar effect.55 The length of time between confirmation of the charges and trial make it increasingly likely that witnesses for the prosecution will drop out when prosecuting any mass crime.56 However, the added stigma associated with sexual and gender-based violence crimes and the difficulties of attaining victim participation at trial means there may be heavy turn over of witnesses and evidence for the prosecutor attempting to bring these charges. As a result, the underlying crimes may be continuously shifting, requiring repeated amendments to the document containing the charges to maintain a timely and complete record. Such a scenario demonstrates the benefits of including more flexibility in the scope of the confirmation of charges, to allow a trial to reasonably proceed while also ensuring the accused is provided with adequate notice of updated underlying crimes.

The Separate Opinion of Wyngaert & Morrison dismissed the argument that it is unrealistic to expect the Prosecutor to have all her underlying acts ready by the time she submits her document containing the charges to the Pre-Trial Chamber. They further stated that to agree with this assertion would be to admit that the confirmation process is “unfit for purpose.”57 However, the pragmatic effects of the “facts and circumstances” standard endorsed by the Majority may have very real impacts on the manner in which the ICC Prosecutor prepares their cases. The Court will need to monitor whether these changes positively advance the goals and values of the ICC.

B. Procedure for Procedure’s Sake?

Aside from the pragmatic issues raised by the Bemba decision, there is the question of whether the ruling accomplishes its stated purpose. Undoubtedly, this standard will provide the accused with the maximum amount of notice of the details of the charges against them. However, enacting a stringent standard for “facts and circumstances” may cripple the work of the Office of the Prosecutor and exceed the function the Pre-Trial Chamber can perform.

Commentators argue the Majority adopts a formalist approach to article 74(2)’s “facts and circumstances” requirement and forgets the restrictions of prosecuting cases at the ICC, as discussed above.58 A formalist or functionalist approach is often associated with a Court’s legal philosophies and values.59 In a basic sense, formalism is represented through the creation of rules, prohibitions, and limitations which are applied stringently to the specific facts of a case. A formalist approach reinforces juridical values of predictability, transparency, and certainty. Alternatively, a functionalist approach favors standards and balancing tests, acknowledging a wider range of factors to allow greater flexibility and evolution in the legal doctrine. This approach is more closely associated with the values of adaptability, efficacy, and justice in law.60 In American Constitutional law, formalism and functionalism are often discussed in reference to US courts’ efforts to maintain the separation of powers between branches of government and to facilitate the appropriate checks and balances on each branches’ use of authority.

Applying this framework in the context of international institution building involves careful consideration of the differences between domestic and international systems. The formalist/functionalist framework is also not necessarily a roadmap for realizing a court’s desired vision. However, as the ICC tackles challenges to its legitimacy,61 strategic application of formalist or functionalist legal standards may assist the ICC to further particular values of the Court.

Part of this consideration is recognition of the Court’s unique position as an international court of justice. Reverting to the more functionalist Pre-Trial confirmation procedural standard which the Court used prior to the Bemba decision, to allow for flexible inclusion of additional underlying crimes, may help the ICC to more effectively end impunity for perpetrators of mass crimes. However, critics of the Bemba decision must also recognize the ICC’s function as a court of individual criminal responsibility and last resort, a function underscored by the ICC’s principle of complementarity.62 This suggests the ICC should retain more formalist procedural guidelines for Pre-Trial confirmations, to ensure protection of the rights of the accused. Ultimately, determining how members of the ICC believe the Pre-Trial Chamber’s confirmation process should fit within the ICC’s overall criminal procedure may help elucidate whether formalist rules or functionalist standards are the preferred method for interpreting article 74(2)’s “facts and circumstances” requirement.

V. Conclusion

After twenty years, the ICC continues to face challenges to its legitimacy. Evidence of the ICC’s efforts to improve its reputation and procedures are apparent in the ICC Appeals Chamber’s decision to acquit Bemba of charges of crimes against humanity, rape as a war crime and crime against humanity, and pillaging. The Majority decision adopted a formalist interpretation of the requirement that the crimes considered by the Trial Chamber may not exceed the “facts and circumstances” described in the charges confirmed by the Pre-Trial Chamber. This interpretation of article 74(2) promotes the role of the Pre-Trial Chamber in protecting the rights of the accused by giving them sufficient notice to prepare their defense. However, the Court should note how adjustments to the scope of article 74(2) affect the ability of the Prosecutor to fulfill other ICC procedural requirements. By appraising any consequences of the Bemba Majority’s decision, the ICC can evaluate whether these impacts align with the purpose of the Pre-Trial Chamber and the institutional values of the ICC overall.

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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

2. 2.

   See e.g., id. at Art. 67. ↩

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 Bemba Appeals Chamber Judgment], available online, archived. ↩

4. 4.

   Rome Statute, supra note 1, at Art. 74(2)

   (“The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decisions only on evidence submitted and discussed before it at the trial.”). ↩

5. 5.

   See Fritz Streiff, The Bemba Acquittal: Checks and Balances at the International Criminal Court, Int’l Just. Monitor (Jul. 18, 2018), available online, archived; see also Alexander Heinze, Some Reflections on the Bemba Appeals Chambers Judgment, Opinio Juris (Jun. 18, 2018), available online, archived. ↩

6. 6.

   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 (PTC II, Jun. 15, 2009) [hereinafter Bemba Pre-Trial Decision], available online, archived. ↩

7. 7.

   Rome Statute, supra note 1, at Art. 61(5). ↩

8. 8.

   Bemba Pre-Trial Decision, supra note 6, ¶¶ 140, 277. ↩

9. 9.

   Id. ¶¶ 160, 282, 322

   (confirming also the charges of rape as a war crime “acts of rape constituting war crimes pursuant to article 8(2)(e)(vi) of the Statute were committed on civilians by MLC soldiers from on or about 26 Oct. 2002 to 15 Mar. 2003”; rape as a crime against humanity “there is sufficient evidence to establish substantial grounds to believe that acts of rape constituting crimes against humanity directed against CAR civilians were committed by MLC soldiers as part of the widespread attack against the CAR civilian population from on or about 26 Oct. 2002 to 15 Mar. 2003”; and pillaging “the Chamber finds that the evidence shows that, as MLC soldiers moved in battle from on or about 26 Oct. 2002 to 15 Mar. 2003 throughout the CAR territory, they appropriated for their own private or personal use belongings of civilians, such as their livestock, vehicles, televisions, radios, clothing, furniture and money, without the consent of the rightful owners”). ↩

10. 10.

    Bemba Appeals Chamber Judgment, supra note 3, ¶ 94. ↩

11. 11.

    Id. ¶ 77. ↩

12. 12.

    Id. ¶ 78. ↩

13. 13.

    Rome Statute, supra note 1, at Art. 66(3). ↩

14. 14.

    The Prosecutor v. Jean-Pierre Bemba Gombo, Summary of Trial Chamber III’s Judgment, ¶ 42 (TC III, Mar. 21, 2016), available online, archived. ↩

15. 15.

    Bemba Appeals Chamber Judgment, supra note 3, ¶ 117. ↩

16. 16.

    Id. ¶ 98. ↩

17. 17.

    Id. ¶ 29. ↩

18. 18.

    Bemba Appeals Chamber Judgment, supra note 3, ¶ 90

    (citing Appeals Hearing Transcript Jan. 9, 2018, 47, lines 5–17). ↩

19. 19.

    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, ¶ 27 (AC, Dec. 1, 2014) [hereinafter Lubanga Appeal Judgment], available online. ↩

20. 20.

    Bemba Appeals Chamber Judgment, supra note 3, ¶ 98. ↩

21. 21.

    Id. ¶ 107

    (“Clearly, this broad formulation would have been an insufficient basis to bring Mr Bemba to trial and cannot be said to amount to a description of ‘facts and circumstances’ in terms of article 74(2) of the Statute.”). ↩

22. 22.

    Id. ¶ 110. ↩

23. 23.

    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, ¶¶ 20–23 (AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison], available online, archived. ↩

24. 24.

    See Lubanga Appeal Judgment, supra note 19, ¶ 210

    (citing The Prosecutor v. Tihomir Blaškić, IT-95-14-A, Judgment, ¶¶ 210–11, 213 (ICTY AC, Jul. 29, 2004), available online.)

    (“The jurisprudence of the ad hoc tribunals establishes different levels of specificity required of the charges depending on the form of individual criminal responsibility charged.”). ↩

25. 25.

    Separate Opinion of Wyngaert & Morrison, supra note 23, ¶ 22. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ¶¶ 26, 29. ↩

28. 28.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji, ¶ 97 (AC, Jun. 14, 2018) available online, archived. ↩

29. 29.

    Id. ¶ 106. ↩

30. 30.

    Id. ¶¶ 140, 148. ↩

31. 31.

    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 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived. ↩

32. 32.

    Rome Statute, supra note 1, at Art. 61(1). ↩

33. 33.

    Bemba Appeals Chamber Judgment, supra note 3, ¶ 74. ↩

34. 34.

    Rome Statute, supra note 1, at Art. 61(7). ↩

35. 35.

    Id. at Art. 74(2). ↩

36. 36.

    Lubanga Appeal Judgment, supra note 19, ¶ 120

    (noting the right to be informed of the details of the charge are included in the International Convention on Civil and Political Rights article 14(3)(a), the European Convention on Human Rights article 6(3)(a) and the American Convention on Human Rights article 8(2)(b). ↩

37. 37.

    Rome Statute, supra note 1, at Arts. 67(1)(a)–(b). ↩

38. 38.

    Lubanga Appeal Judgment, supra note 19, ¶ 123. ↩

39. 39.

    Id. ¶ 128. ↩

40. 40.

    See Amy Senier, The ICC Appeals Chamber Judgment on the Legal Characterization of the Facts in Prosecutor v. Lubanga, 14 ASIL Insights (Jan. 8, 2010), available online. ↩

41. 41.

    See Susana SáCouto & Katherine Cleary Thompson, The Confirmation of Charges Process at the International Criminal Court: A Critical Assessment and Recommendations for Change, Am. U. Wash. C. L., WCRO 14 (Oct. 2015) [hereinafter Confirmation Process], available online. ↩

42. 42.

    Alex Whiting, Appeals Judges Turn the ICC on Its Head With Bemba Decision, Just Security (Jun. 14, 2018), available online, archived. ↩

43. 43.

    Rome Statute, supra note 1, at Art. 61(7)(a). ↩

44. 44.

    Otto Triffterer & Kai Ambos, The Rome Statute of the International Criminal Court: A Commentary (3d. ed. Jan. 14, 2016). ↩

45. 45.

    Rome Statute, supra note 1, at Art. 61(5)

    (stating that the Prosecutor must provide sufficient evidence to demonstrate substantial grounds to believe the accused committed the charges). ↩

46. 46.

    See Confirmation Process, supra note 41, at 14. ↩

47. 47.

    See Whiting, supra note 42. ↩

48. 48.

    See Rome Statute, supra note 1, at Art. 66; Confirmation Process, supra note 41, at 14. ↩

49. 49.

    See International Criminal Court, Understanding the International Criminal Court 25 (Aug. 22, 2013), available online. ↩

50. 50.

    See also 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. ↩

51. 51.

    See id. ↩

52. 52.

    See Whiting, supra note 42

    (describing the effects of the higher standard as a “one-way ratchet” on the procedures at the Pre-Trial stage). ↩

53. 53.

    Rome Statute, supra note 1, at Art. 61(1). ↩

54. 54.

    Id. at Art. 67(1)(c). ↩

55. 55.

    See 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. ↩

56. 56.

    Whiting, supra note 42. ↩

57. 57.

    Separate Opinion of Wyngaert & Morrison, supra note 23, ¶ 28. ↩

58. 58.

    See Fritz, supra note 5; Whiting, supra note 42. ↩

59. 59.

    See William N. Eskridge, Jr., Relationship Between Formalism and Functionalism in Separation of Powers Cases, 22 Harv. J.L. & Pub. Pol’y 21, 21–22 (1998), available online

    (discussing the values associated with formalist or functionalist adjudications as derived from studying US constitutionalism). ↩

60. 60.

    See id. ↩

61. 61.

    See e.g., Margaret M. deGuzman, Response to Question: “Is the ICC Targeting Africa Inappropriately?”, ICC Forum (Mar. 17, 2013), available online. ↩

62. 62.

    Rome Statute, supra note 1, at Preamble. ↩