Vol. 39 Managing Article Editor
In early June, the Appeals Chamber of the International Criminal Court (“ICC”) issued its judgment in The Prosecutor v. Jean-Pierre Bemba Gombo, reversing the judgment of the Trial Chamber and acquitting Mr. Bemba. Mr. Bemba—the former president and commander-in-chief of the Mouvement de libération du Congo (“MLC”)—had been charged with two counts of crimes against humanity and three counts of war crimes between October 2002 and March 2003 in the Central African Republic (“CAR”). More specifically, the charges alleged that Mr. Bemba, under the doctrine of command responsibility, failed to take all reasonable and necessary measures to prevent and punish MLC troops for committing rape, murder, and pillaging against the civilian population in the CAR.
The shock of the acquittal reverberated through the international criminal law community. For one, many viewed the Appeals Chamber’s acquittal as a disappointment. The tribunal, which aims to ensure that the perpetrators of the most serious crimes do not go unpunished, failed to provide justice to the victims who suffered at the hands of the troops.
Also of concern is the majority’s claim that it evaluated the case in a manner consistent with prior international criminal jurisprudence. In reality, the majority deviated from established precedent by applying a novel standard of review of factual findings. Typically, the Appeals Chamber should only deviate from the factual findings of the Trial Chamber where, first, it finds that no reasonable trier of fact could have arrived at the same conclusion, and second, where that error resulted in a miscarriage of justice. Instead, in Bemba, the majority declined to defer to the factual findings of the Trial Chamber, and chose to evaluate the evidence in a de novo-like fashion. It justified this move by claiming, “the failure to interfere [with the Trial Chamber’s factual findings] may occasion a miscarriage of justice.” It then outlined a new standard of factual review:
[W]hen a reasonable and objective person can articulate serious doubts about the accuracy of a given finding, and is able to support this view with specific arguments, 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.
Consequently, according to the majority, “when the Appeals Chamber is able to identify findings that can reasonably be called into doubt, it must overturn them.”
And that is exactly what the Appeals Chamber did. After identifying a number of errors in the assessment of the facts by the tribunal below, it concluded—upon its own, removed review of the evidence—that the errors “materially affected” the Trial Chamber’s conclusions, and decided to acquit Mr. Bemba.
The Forgotten Approach: Ordering a Retrial in the ICC
Because the majority’s decision relies heavily on factual errors committed by the lower tribunal, it is troubling that it never considered the possibility of remanding the case to the Trial Chamber and ordering a new trial in front of a different panel of judges. Despite its secondhand examination of the facts, the majority decided to acquit Mr. Bemba without evaluating whether it should order a new trial.
It is unclear why the majority failed to consider this avenue—the opinion does not even do as little as mention the possibility of ordering a new trial. But the Appeals Chamber does have the power to order a retrial. Under article 83(2) of the Rome Statute:
If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appeals from was materially affected by error of fact or law or procedural error, it may:
(a) Reverse or amend the decision or sentence; or
(b) Order a new trial before a different Trial chamber.
Despite having this ability, the majority overlooked this solution and instead made its own conclusions on the evidence, disregarding the findings of the lower court. While international tribunals have rarely ordered retrials in past cases, they are not an unfamiliar concept in international criminal law.
Pros and Cons of Retrial
One reason for not ordering a new trial is cost considerations: new proceedings require more money to pay counsel, the judges, and the tribunal’s registrar. Another is that Mr. Bemba, already having spent several years under ICC custody, would remain under the court’s surveillance with limited personal freedom. With a retrial, the verdict of the case would not be determined for a few more years at the very least.
These considerations should not be taken lightly when considering a retrial. But as the Muvunyi Appeals Chamber emphasized, international criminal law cases deal with the most serious crimes, and despite the drawbacks, a retrial may be the best avenue to serve the interests of justice:
The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well serviced if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion.
More specifically to the Bemba case, ordering a retrial would have been a less harmful approach than the Appeals Chamber’s imposition of its new, troubling standard of review.
The Appeals Chamber’s Newfound Influence: Consequences of the New Standard
The new standard creates a few problems. The “serious doubts” standard generates more uncertainty about the finality of factual findings. It lowers the bar from a high, more objective standard to a lower, more malleable one. The Appeals Chamber can more easily overturn a Trial Chamber’s conclusions based on its own serious doubts rather than strictly examining the quality of the lower court’s analysis. And this looser standard means more variation in the extent to which the Appeals Chamber interferes with the lower court’s findings; inconsistencies that would create “serious doubts” for one panel of judges may not be concerning for another panel. Interestingly, the majority did not state whether the new standard should apply differently to acquitted individuals versus convicted ones. In theory, as it stands right now, an acquitted individual at appeal may more easily be found guilty if the Appeals Chamber expresses serious doubts about the factual conclusions below.
The new standard also allows the Appeals Chamber to play the role of fact-finder though it is not properly situated to evaluate the evidence. Unlike the Trial Chamber, the Appeals Chamber is unable to observe the witness’ testimony and demeanor, which may be helpful in assessing witness credibility. But even if Judge Eboe-Osuji is right that advancements in technology have allowed appeals chambers to nearly firsthand observe the trial proceedings, it should not be overlooked that this new standard also creates a power imbalance between the Trial and Appeals Chambers. The new standard allows the Appeals Chambers to usurp the functions of the Trial Chamber. It consequently places the Trial Chamber at the mercy of the beliefs and doubts of the judges constituting the appeals panel, and creates a disincentive for trial judges to get the case right the first time.
One way in which Judge Eboe-Osuji justifies the Appeals Chamber’s ability to play the role of factfinder is by pointing to the Rome Statute. In his separate opinion, Judge Eboe-Osuji emphasizes that Article 81 of the Rome Statute states that “the Appeals Chamber shall have all the powers of the Trial Chamber.” The ICC Appeals Chamber is therefore permitted to be a fact-finder, because it is vested with all the powers of the trial chambers through the Court’s constitutive document. He supports this contention by noting that the statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR) do not contain a similar delegation of power to their appeals chambers, which is presumably why they play a strictly appellate role.
But, just because the statute literally says the Appeals Chamber shall have all the powers of the Trial Chamber, it does not mean that the Appeals Chamber should exercise this power. By acquitting Mr. Bemba based on a slim majority’s serious doubts expressed in an uncharacteristically short opinion, the Appeals Chamber has thrown appellate review and even first instance fact-finding of international criminal law cases into limbo. The majority may have had valid reasons to be skeptical of the lower court’s findings, but the better outcome would have been to order a retrial, and let the tribunal specializing in fact-finding carry out those duties rather than chipping away at established precedent.
 Leila N. Sadat, Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, EJIL: Talk! (June 12, 2018), https://www.ejiltalk.org/fiddling-while-rome-burns-the-appeals-chambers-curious-decision-in-prosecutor-v-jean-pierre-bemba-gombo/; Dirke Köpp, Opinion: Jean-Pierre Bemba ruling a blow for victims – and for Joseph Kabila, DW (June 9, 2018), http://www.dw.com/en/opinion-jean-pierre-bemba-ruling-a-blow-for-victims-and-for-joseph-kabila/a-44140481.
 E.g., The Prosecutor v. Jean-Pierre Bemba Gombo et al. (ICC-01/05-01/13), Appeals Chamber, 8 Mar. 2018, paras. 96-98; Blagojević & Jokić (IT-02-60-A), Appeals Chamber, 9 May 2007, para. 9; Brđanin (IT-99-36-A), Appeals Chamber, 3 April 2007, para. 13; Strugar (IT-01-42-A), Appeals Chamber, 17 July 2008, paras 252, 269; Rutaganda (ICTR-96-39A), Appeals Chamber, 26 May 2003, paras 21, 367, 512; Prosecutor v. Taylor (SCSL-03-01-A), Appeals Chamber, 26 Sept. 2013, para. 26.
 The Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08), Judgment pursuant to Article 74 of the Statute, 8 June 2018, para. 38 (The majority “consider[ed] that the idea of a margin of deference to the factual findings of the trial chamber must be approached with extreme caution.”)
 See, e.g., Muvunyi, ICTR-2000-55A-A, para. 148 (ordering a retrial because the “aggregate errors in addressing the apparently inconsistent testimony of [w]itnesses [. . .] prevent the Appeals Chamber from determining whether the Trial Chamber assessed the entire evidence on this point exhaustively and properly”); Stanisic & Simatovic, IT-03-69-A, para. 125; Haradinaj et al., IT-04-84bis-AR73.1, para. 26.
 Muvunyi, at para. 148.
 Rutaganda (ICTR-96-39A), Appeals Chamber, 26 May 2003, para. 21 (Trial Chamber deference “is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying, and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility and to determine the probative value to ascribe to the evidence presented at trial.”).
 The Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08), Concurring Separate Opinion of Judge Eboe-Osuji, para. 58.
 Id. at para. 45.