This Note examines the ways in which the International Criminal Court (ICC)’s fragmented 3-2 acquittal of Jean-Pierre Bemba Gombo (Bemba) demonstrates the ineffectiveness of a lack of legal standards guiding the ICC. It analyzes the doctrine of command responsibility as applied in the Bemba acquittal, exploring the Appeals Chamber judges’ divergent views on three legal issues pertinent to a finding of that particular mode of liability. The Note then argues that the fractured decision should serve as an opportunity for proactively updating the rules.

Following Bemba’s 2018 acquittal, much of the response from affected communities and scholars has focused on how this decision reflects the efficacy of the ICC, or even international justice writ large. However, as judicial dissents and fragmented judgments frequently serve not only as an influence on legitimacy but also to impact future jurisprudence and institutional reforms, an additional discussion is critical: how can interested parties learn from the fractured manner in which the acquittal was accomplished to further the goals of international criminal law?

In order to ensure that the Bemba decision is constructive, this Note proposes that the Assembly of States Parties (ASP) develop an Elements of Liability guiding document, modelled after the Elements of Crimes. As explored in the Note, this guidance would establish uniform standards in determining modes of liability, providing the Prosecution, Defence, and Judges’ Chambers—as well as victims, scholars, national court systems, and others—clear and consistent principles on which to base their advocacy and decisions. Creating an Elements of Liability document would thus transform a divisive judgment into a strengthening of international criminal law.

Continue reading Fracture for Good? Using the Acquittal in the Prosecutor V. Jean-Pierre Bemba Gombo as an Impetus to Clarify and Strengthen the Development of International Criminal Law