Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo

This chapter discusses the acquittal on appeal on 8 June 2018 of Jean-Pierre Bemba Gombo by the International Criminal Court on the basis of command responsibility for war crimes committed by troops under his command in the Central African Republic between October 2002 and March 2003. In terms of the traditional standard of appellate deference the Appeals Chamber displays a margin of deference in relation to the factual findings of the Trial Chamber and does not interfere with these findings unless it cannot discern how the Trial Chamber reasonably could have reached its conclusion on the basis of the evidence before it. The chapter analyses whether there are grounds to conclude that no reasonable trier of fact could have reached the conclusion of the Trial Chamber to convict Bemba on the evidence before it and considers whether it was justifiable for the Appeals Chamber to analyse the evidence de novo and arrive at a different conclusion. It argues that the Vienna Convention on the Law of Treaties is the correct instrument to interpret the provisions of the Rome Statute and that the Appeals Chamber erroneously applied Article 22(2) of the Rome Statute of the International Criminal Court, which deals with the strict interpretation of the definition of crimes, in order to interpret Article 28 which deals with command responsibility. This affected its approach and consideration of the evidence led before the Trial Chamber. Finally, it offers observations on the effect of the deviation from the standard of appellate deference in Bemba on the future prosecution of sexual and gender-based crimes.