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. ↩