Is There Even A Standard of Review at the ICC?

Abstract

The jurisprudence of the ICC has been described as a Darwinian struggle between the civil and common law traditions. Nowhere is this clearer than in the standard of review employed by the Appeals Chamber. Most practitioners – particularly those from common law jurisdictions – thought that that the Appeals Chamber employed three putatively distinct standards of review with respect to questions of facts, law, and the exercise of discretion. With respect to errors of law, the standard of review was one of correctness (in Lubanga, the court held that the Appeals Chamber “will not defer to the Trial Chamber’s interpretation of the law…[but] will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law.”), with respect to errors of facts, the standard was one of reasonableness and deference to the Trial Chamber (in Lubanga, the Appeals Chamber stated it would “not interfere with factual findings of the first-instance Chamber unless it is shown that the Chamber committed a clear error, namely, misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts,” and where “it cannot discern how the Chamber’s conclusion could have reasonably been reached”) (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction (Appeals Chamber), No. ICC-01/04-01/06-3121-Red A5, 01 December 2014, paras. 16-27). With respect to the exercise of discretion, in Kony, the Appeals Chamber held that the standard was one of abuse of discretion (Prosecutor v. Joseph Kony et al. Judgment on the appeal of the Defence against the on the admissibility of the case under article 19 (1) of the of 10 March 2009, 16 September 2009, ICC-02/04-01/05-408, para 80). However, the Bemba Appeals Decision turned this all on its head. The Appeals Chamber found (by the narrowest 3-2 vote) that while correctness remained the standard with respect to errors of law, errors of fact would not be reviewed on a purely reasonableness standard (“The Appeals Chamber must be careful not to constrain the exercise of its appellate discretion in such a way that it ties its own hands against the interest of justice…[The] Appeals Chamber must ensure that the trial chamber reasonably reached a conviction as to guilt beyond reasonable doubt in accordance with article 66(3) of the Statute ”) (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (Appeals Chamber), No. ICC-01/05-01/08-3636-Red 08-06-2018, paras. 40-41). The Bemba decision provoked immediate outrage. I argue that the jurisprudence of the ICC was never clear on the standard of view – pace the view of many scholars. Analyzing the decisions of the Appeals Chamber, I show that the debate between correctness and reasonableness had never been fully resolved – even prior to Bemba – and reflects in large part the different legal background of judges. I conclude with a proposal for how the court might harmonize and simplify its approach.