[653] Appeal against decision of acquittal or conviction or against sentence
General Remarks
Article 81 concerns the appeal of the final decision on conviction or acquittal. The possibility of the defendant to appeal a criminal conviction is a human right pursuant to Article 14(5) of the ICCPR.
   One question is whether the appeal proceedings are intended to be a trial de novo or are more of a corrective procedure. Brady argues that the specified grounds for appeal in Article 81 of the Rome Statute would suggest that the appeal is more in nature with a corrective procedure (Brady, p. 583). Staker holds a similar view (Staker, p. 1455). Roth and Henzelin are more cautious and they are more open towards trial de novo. They argue that the case-law from the ECtHR which allows more corrective appeal proceedings has been applied to minor cases and not to cases of the nature that the ICC is concerned with (Roth and Henzelin, pp. 1552-1555). 
   Article 81 contain distinct provisions for an appeal of the verdict and an appeal of the sentence. Only the prosecutor or the convicted person may file an appeal. Although this excludes victims, they may participate in the appeals if there personal interests are affected by the appeal to the extent that it is not "prejudicial to or inconsistents with the rights of the accused and a fair and impartial trial" (Prosecutor v. Lubanga, ICC A. Ch., Decision on the participation of victims in the appeal, ICC-01/04-01/06-1453, 6 August 2008, para. 7). Pursuant to rule 103 the Appeals Chamber may, if it considers it appropriate, invite or grant leave to a State, organization or person to submit observations.

Cross-reference:
Rule 152

Author: Mark Klamberg

Updated: 30 June 2016

[654] 1. A decision under Article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the proceedings or decision.
Paragraph 1 provides for three grounds on which the Prosecution may bring an appeal, and four grounds on which the convicted person can appeal.
   Procedural errors include non-compliance with mandatory procedural requirements of the Statute and the RPE as well as errors relating to the exercise of the discretion by a Trial Chamber (for example: on admissibility of evidence)
   Errors of fact includes two types of errors. The first type is when it is alleged that the Trial Chamber erred in reaching the conclusions of fact it did on the basis of the evidence that was before it. The second type concerns the type when the Trial Chamber was justified in reaching the final conclucion on the evidence presented at trial, but where additional evidence present on appeal casts doubt on those findings (Staker, p. 1459-1465).
   Errors of law may concern any determination made by a Trial Chamber on a question of the substantive or procedural law of the Court.
   The phrase "any other ground that affects the fairness or reliability of the proceedings or decision" is a "catch-all" provision that may add little to the other specified grounds of appeal. 

Author: Mark Klamberg

Updated: 30 June 2016

[655] 2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;
(b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under Article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with Article 83;
(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a).
Paragraph 2 provides for appeal against the sentence. In contrast to paragraph 1(b), there is no express provision for the Prosecutor to bring an appeal of the convicted person, although nothing in the wording of paragraph 2 would prevent it (Staker, p. 1454).
  The paragraph only provides for ground for appeal is that there is "disproportion between the crime and the sentence". However, it follows from Article 83(2) that appeals may also be brought against a sentence based on allegations of "error of fact or law or procedural error". This could include: failure to hold a hearing under Article 76(2); determining the sentence based on matters that are factually wrong; and/or misconstruing a provision of the Statute or the Rules.

Author: Mark Klamberg

Updated: 30 June 2016

[656] 3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;
(b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below;
(c) In case of an acquittal, the accused shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal;
(ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence.
A convicted person shall remain in custody pending an appeal unless the Trial Chamber orders otherwise. This is based on the assumption that the convicted person is already in custody, which is not necessarily the case.
   If the person has been acquitted the person is to be released immediately. However, the Prosecutor may request the Trial Chamber to maintain the detention of the person pending appeal in "exceptional circumstances" taking into consideration, inter alia, "the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal".

Author: Mark Klamberg

Updated: 30 June 2016

[657] 4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.
Apart from the fact that the person convicted normally remain in custody, as provided for in paragraph 3, execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings. 

Cross-references:
Rules 149, Rule 150, 151, 152, 154
Regulations 57, 58, 59, 60, 61, 63

Doctrine:

1. Helen Brady, “Appeal”, in Roy S. Lee (Ed.), The International Criminal Court—Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 575-596.
2. Robert Roth/Marc Henzelin, “The Appeal Procedure of the ICC”, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 1535-1558.
3. William A. Schabas , The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 929-937.
4. Christopher Staker, "Article 81—Appeal Against Decision or Acquittal or Conviction or Against Sentence", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1449–1474.

Author: Mark Klamberg

Updated: 30 June 2016

[658] Appeal against other decisions
General Remarks
Article 82(1)-(2) addresses interlocutory appeals against certain decisions by the Pre-Trial or Trial Chamber. Paragraphs 1(a)-(c) and (2) set out decisions against which an interlocutory appeal is always permitted. Paragraph 1(d) provides a system for certification – leave to appeal – regarding other decisions. A decision that may not be appealed separately, or for which leave to appeal is not granted, can be challenged in an appeal against the final decision in the case.
   Article 82(3) deals with suspensive effects of an appeal and Article 82(4) with appeals against reparation orders, provisions that are not confined to interlocutory appeals (see also Prosecutor v. Ngudjolo Chui, ICC A. Ch., Decision on the Public document request of the Prosecutor of 19 December 2012 for suspensive effect, ICC-01/04-02/12-12, 20 December 2012, para. 15).

i) Grounds for and standards of review
As to the grounds for appeal, the Appeals Chamber has accepted that the categories of errors in Article 81(1)(a) be transposed to interlocutory appeals: procedural error, error of fact and error of law (Situation in the Democratic Republic of Congo, ICC A. Ch., Judgment on the Prosecutor’s Appeal against the decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”. ICC-01/04-169, 13 July 2006, paras 34-35). Hence, the appellant may rely on procedural errors as the basis also for impugning a decision concerning the admissibility of the case (e.g. Prosecutor v. Kony, Otti, Odhiambo and Ongwen, ICC A. Ch., Judgment on the appeal of the Defence against the “Decision on the admissibility of the case under Article 19 (1) of the Statute” of 10 March 2009, ICC-02/04-01/05-408, 16 September 2009, para. 47).
   The Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158(2)). Initially it was not clear whether the requirements set forth for reversal or amendment in Article 83(2) are applicable also in case of an appeal in accordance with Article 82 (Situation in the Democratic Republic of Congo, ICC A. Ch., ICC-01/04-169, 13 July 2006, para. 83). But later the Appeals Chamber has clarified that Article 83(2) does not apply to appeals under Article 82 (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence”, ICC-01/04-01/06-568, 13 October 2006, para. 13).
   Nonetheless, the Appeals Chamber has regularly applied the requirement, found in article 83(2), that the error of fact or law or procedural error must have “materially affected” the decision (e.g. Situation in Uganda, ICC A. Ch., Judgment on the appeals of the Defence against the decisions entitled “Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06” of Pre-Trial Chamber II, ICC-02/04-179, 23 February 2009, para. 40; Prosecutor v. Lubanga, ICC A.Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”, ICC-01/04-01/06-1487, 21 October 2008, para. 44; Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-1497, 25 September 2009, para. 38). The impugned decision is materially affected by the error if the decision would otherwise have been “substantially different” (Situation in the Democratic Republic of Congo, ICC A. Ch., ICC-01/04-169, 13 July 2006, para. 83).
   The Appeals Chamber will not interfere with a discretionary decision by another Chamber unless that decision is vitiated by a legal error, a factual error or a procedural error, and only if the error materially affected the decision, which includes assessing whether the other Chamber erred in law, gave undue weight to extraneous factors, or failed to consider relevant factors (Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, ICC-01/04-01/07-2259, 12 July 2010, para. 34). Under this standard of review, the Appeals Chamber will not reverse the impugned decision simply because it would have decided differently, but only when it finds that the Trial Chamber exercised its discretion incorrectly. In applying this “margin of appreciation”, the Appeals Chamber will interfere only in the case of a clear error, namely where it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it (Prosecutor v. Mbarushimana, ICC A. Ch., Judgment on the appeal of Mr Callixte Mbarushimana against the decision of Pre-Trial Chamber I of 19 May 2011 entitled “Decision on the 'Defence Request for Interim Release”, ICC-01/04-01/10-283, 14 July 2011, para. 17).
   One example of improper application of discretion was the Pre-Trial Chamber (Single Judge) ordering the production and submission of so-called “in-depth analysis charts” without first receiving submissions from the parties concerning the utility of the ordered scheme (Prosecutor v. Ongwen, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber II entitled “Decision Setting the Regime for Evidence Disclosure and Other Related Matters”, ICC-02/04-01/15-251, 17 June 2015, para. 46). This exercise of discretion was considered to be “unfair and unreasonable and had a material effect on the Impugned Decision”.

ii) Errors of law
On legal errors, the Appeals Chamber has stated that it “will not defer to the Trial Chamber's interpretation of the law”, but instead that “it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law” (Prosecutor v. Banda and Jerbo, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled “Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation”, ICC-02/05-03/09-295, 17 February 2012, para. 20). In case of an error of law, the Appeals Chamber will only intervene if the error materially affected the impugned decision (para. 20). Insufficient reasoning may amount to an error of law (e.g. Prosecutor v. Gbagbo, ICC A. Ch., Judgment on the appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I of 13 July 2012 entitled “Decision on the 'Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo”, ICC-02/11-01/11-278, 26 October 2012, paras 46-47 and the dissenting opinions of judges Ušacka and Kourula).
   Where the appellant, while alleging an error of law, challenges the factual finding based on that law, the Appeals Chamber will consider such an alleged error as an error of fact (Prosecutor v. Simone Gbagbo, ICC A. Ch., Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”, ICC-02/11-01/12-75, 27 May 2015, paras 70 and 78).

iii) Errors of fact
On factual errors, the Appeals Chamber has stated that it will not interfere with factual findings of a first-instance Chamber unless it is shown that that Chamber “committed a clear error, namely: misappreciated the facts, took into account irrelevant facts or failed to take into account relevant facts” (e.g. Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Judgment on the Appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, ICC-01/11-01/11-547, 21 May 2014, para. 93). Hence, the appraisal of evidence lies, in the first place, with the relevant Chamber and the Appeals Chamber will “defer or accord a margin of appreciation both to the inferences [the Trial Chamber] drew from the available evidence and to the weight it accorded to the different factors militating for or against detention” (Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 6 January 2012 entitled 'Decision on the defence’s 28 December 2011 “Requête de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo”, ICC-01/05-01/08-2151, 5 March 2012, para. 16). The appellant’s mere disagreement with the conclusions that the Chamber drew from the available facts or the weight it accorded to particular factors is not enough to establish a clear error (Prosecutor v. Mbarushimana, ICC A. Ch., ICC-01/04-01/10-283, 14 July 2011, para. 17).

iv) Procedural errors
On procedural errors, the guiding question for the Appeals Chamber’s review is whether the procedure the Pre-Trial or Trial Chamber adopted was so unfair and unreasonable as to constitute an abuse of discretion (e.g. Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Judgment on the Appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, ICC-01/11-01/11-547, 21 May 2014, para. 162).

v) Additional evidence on appeal
The corrective function of the Appeals Chamber and the fact that the scope of proceedings on appeal is determined by the scope of the relevant proceedings before the Pre-Trial or Trial Chamber have been held against accepting additional evidence on appeal (e.g. Prosecutor v. Ruto and Sang, ICC A. Ch., Decision on the “Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”, ICC-01/09-01/11-234, 28 July 2011, paras 9-14; Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, ICC-01/11-01/11-547, 21 May 2014, para. 43). It would, according to the Appeals Chamber, not be appropriate for it to consider the information (some of which postdated the impugned decision) when the Pre-Trial Chamber had not done so (Prosecutor v. Gaddafi and Al-Sanussi, ICC A. Ch., Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”, ICC-01/11-01/11-565, 24 July 2014, para. 58). Likewise, the Appeals Chamber did not take into account, in the circumstances of the case at hand, any other factual matters that post-date the impugned decision or were not before the Pre-Trial Chamber (para. 59).

vi) Other procedural issues
Some procedural provisions are provided in the Rules. As a general principle, Parts 5 and 6 of the Statute and the rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers are also applicable, mutatis mutandis, to the proceedings in the Appeals Chamber (rule 149). The filing of interlocutory appeals is addressed in rule 154 (no leave to appeal required) and rule 155 (leave for appeal required). The procedure before the Appeals Chamber, directly or upon leave to appeal, is set out in rule 156. Further directions are given in regulations 64 and 65. An appeal may be discontinued at any time before the judgment (rule 157). Apart from setting out the power of the Appeals Chamber to confirm, reverse or amend the impugned decision, rule 158 provides that the judgment shall be delivered in accordance with Article 83(4).
   The Appeals Chamber may decide to render a single judgment on multiple appeals when the impugned decision is identical (Prosecutor v. Kony, Otti, Odhiambo and Ongwen, ICC A. Ch., Judgment on the appeals of the Defence against the decisions entitled “Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06” of Pre-Trial Chamber II, ICC-02/04-01/05-371, 23 February 2009, para. 12). The same approach has also been taken when the subject-matter of each one of the appeals under review is identical (e.g. Situation in Darfur, Sudan, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 3 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 6 December 2007, ICC-02/05-177, 2 February 2009).

Preparatory works
As with the rest of the ICC Statute, there is a lack of pertinent traveaux préparatoires for the purpose of assisting in the interpretation and application of the provisions. The 1994 ILC Draft Statute contained only brief provisions on appeals and revision, inspired by the provisions of the ICTY Statute (Articles 48-50, Report of the International Law Commission on the work of its 46th session 2 May-22 July 1994, U.N. Doc. A/49/10, 1994, at 125-129). The subsequent negotiations in the Preparatory Committee generated a large number of additional proposals with respect to appeals, which were listed in a compilation – “the telephone book” (Article 48, Report of the Preparatory Committee, U.N.Doc A/51/22, Vol. II, 1996, at 235-242). In order to further compile and clarify the alternatives, and to create a higher degree of compatibility and consistency among the proposals, delegations met at an intersessional meeting in Siracusa in May and June 1997. Although the new compilation was an informal document, it proved very influential as a point of departure in the further negotiations.
   Another compiled draft Statute – the Zutphen draft – formed the basis of the final session of the Preparatory Committee and it contained more elaborated texts on appeals, albeit with various options (Articles 73-74, Draft Report of the Intersessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands). The Report of the Preparatory Committee, which was the basis for the Rome Diplomatic Conference, contained further refined provisions, including an article specifically addressing interlocutory appeals (Article 81, Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2 (1998), at 64-66). This draft provision also included a default rule on leave to appeal which was similar to the final Article 82(1)(d).

Author: Håkan Friman

Updated: 30 June 2016

[659] 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence:
Article 82(1) designates the right to appeal to “either party”. The Appeals Chamber has concluded that “the Statute defines exhaustively the right to appeal” and further held that the limitation of the right to bring interlocutory appeals to those subjects listed in Article 82 of the Statute is fully consistent with internationally recognized human rights (Situation in the Democratic Republic of Congo, ICC A. Ch., Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-168, 13 July 2006, paras 38-39). This means that no one else than a party may appeal or be granted leave to appeal (Prosecutor v. Lubanga, ICC A. Ch., Decision on the “Urgent Request for Directions” of the Kingdom of the Netherlands of 17 August 2011, ICC-01/04-01/06-2799, 26 August 2011, para. 8).
   As part of the reasons in support of the application of a ground of appeal, an appellant is obliged not only to set out the alleged error, but also to indicate, with sufficient precision, how this error would have materially affected the impugned decision (Prosecutor v. Kony, Otti, Odhiambo and Ongwen, ICC A. Ch., Judgment on the appeal of the Defence against the “Decision on the admissibility of the case under Article 19 (1) of the Statute” of 10 March 2009, ICC-02/04-01/05-408, 16 September 2009, para. 48). This may include explaining how the decision would have been substantially different without the error, such as by referring to arguments that the appellant would have made in response to an incorrectly handled submission and that could have led to a different decision (Prosecutor v. Gbagbo, ICC A. Ch., Judgment on the appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings, ICC-02/11-01/11-321, 12 December 2012, para. 44). If these requirements are not met, the Appeals Chamber may dismiss arguments in limine, without full consideration of their merits (e.g. Prosecutor v. Ntaganda, ICC A. Ch., Judgment on the appeal of Mr Bosco Ntaganda against the decision of Pre-Trial Chamber II of 18 November 2013 entitled “Decision on the Defence's Application for Interim Release”, ICC-01/04-02/06-271, 5 March 2014, para. 32).

Author: Håkan Friman

Updated: 30 June 2016

[660] (a) A decision with respect to jurisdiction or admissibility;
The Appeals Chamber is the competent Chamber to decide whether the defence may avail itself of the procedural remedy of an appeal under Article 82(1)(a) and thus to decide on related matters such as the extension of time limits (Prosecutor v. Lubanga, ICC PT. Ch., Decision on the Application by the Duty Counsel for the Defence Dated 20 March 2006, ICC-01/04-01/06-50, 22 March 2006). The function of the Appeals Chamber in respect of appeals brought under Article 82(1)(a) is to determine whether the determination on the admissibility of the case or the jurisdiction of the Court was in accord with the law (Prosecutor v. Kony, Otti, Odhiambo and Ongwen, ICC A. Ch., ICC-02/04-01/05-408, 16 September 2009, para. 80). Hence, its function is not to decide anew on the admissibility of the case (e.g. Prosecutor v. Muthaura, Kenyatta and Ali, ICC A. Ch., Decision on the “Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”, ICC-01/09- 02/11-202, 28 July 2011, paras 9 and 11).
   In light of the limitation in Article 19(4) concerning the number of challenges that a person or a State may raise with respect to the jurisdiction of the Court or the admissibility of the case, an appellant may wish to preserve the right to challenge by discontinuing an appeal. However, the Appeals Chamber has concluded that discontinuance of an appeal cannot be made subject to reservations and found as invalid a notice of discontinuance subject to the appellants retaining the right to challenge the admissibility of the case (Prosecutor v. Lubanga, ICC A. Ch., Decision on Thomas Lubanga Dyilo's Brief Relative to Discontinuance of Appeal, ICC-01/04-01/06-176, 3 July 2006). Further, the Appeals Chamber has rejected the appellants request that the matter be referred to the Pre-Trial Chamber (see Article 19(6)) and instead deemed the appeal as abandoned and dismissed (Prosecutor v. Lubanga, ICC A. Ch., Decision on Thomas Lubanga Dyilo's Application for Referral to the pre-Trial Chamber/in the Alternative, Discontinuance of Appeal, ICC-01/04-01/06-393, 6 September 2006).
   The phrase “decision with respect to” is interpreted to mean that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case, and it is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility (Situation in Kenya, ICC A. Ch., Decision on the admissibility of the "Appeal of the Government of Kenya against the 'Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence'", ICC-01/09-78, 10 August 2011, paras 15-16; Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Decision on the admissibility of the “Appeal Against Decision on Application Under Rule 103” of Ms Mishana Hosseinioun of 7 February 2012, ICC-01/11-01/11-74, 9 March 2012, para. 10). Hence, an appeal was not allowed on this ground against a decision concerning assistance to and cooperation with the Court just because it was related to a challenge to the admissibility of two cases that the appellant had lodged. Likewise, an appeal was rejected when the impugned decision concerned a request for the postponement of surrender under Article 95 but contained no determination concerning the admissibility of the case (Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Decision on “Government of Libya’s Appeal Against the ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi’” of 10 April 2012, ICC-01/11-01/11-126, 25 April 2012, para. 14).
   The notion of “jurisdiction” is not entirely the same in different legal traditions and there may be different opinions as to what constitutes a jurisdictional issue. In Lubanga, the defence challenged the jurisdiction of the Court by reference to the “doctrine of abuse of process”. In the appeal against the Pre-Trial Chamber’s decision establishing jurisdiction (and the admissibility of the case), the Appeals Chamber rejected the submission that a challenge based upon this doctrine raises a challenge to the jurisdiction of the Court (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 (2) (a) of the Statute of 3 October 2006, ICC-01/04-01/06-772, 14 December 2006, para. 24). Instead, the doctrine should be considered a sui generis application to stay the proceedings and release the suspect, i.e. to relinquish jurisdiction. Nonetheless, the appeals, referring to Article 82(1)(a), were addressed in substance by the Chamber.
   In Gbagbo, on the other hand, the Appeals Chamber stated that a decision to reject a request to stay the proceedings is not a “decision with respect to jurisdiction” in terms of Article 82(1)(a) and may therefore be appealed only with the leave of the Chamber under Article 82(1)(d) (Gbagbo, ICC A. Ch., ICC-02/11-01/11-321, 12 December 2012, para. 101). Conversely, a decision that is subject to an appeal under Article 82(1)(a) may not be appealed pursuant to Article 82(1)(d) (Prosecutor v. Gaddafi and Al-Senussi, ICC PT. Ch. I, Decision on Libya application for leave to appeal and request for reconsideration of the “Decision on the ‘Urgent Defence Request’”, ICC-01/11-01/11-316, 24 April 2013, para. 30).
   Also the concept “subject-matter jurisdiction” may be understood differently. In Lubanga, the Appeals Chamber concluded that “[j]urisdiction under Article 19 of the Statute denotes competence to deal with a criminal cause or matter under the Statute" (Prosecutor v. Lubanga, ICC A. Ch., ICC-01/04-01/06-772, 14 December 2006, para. 24). An appeal which challenged the Pre-Trial Chamber’s interpretation of the requirement of an “organizational policy” for crimes against humanity (see Article 7(2)(a)) was held to relate to the substantive merits of the case as opposed to the issue whether the Court has subject-matter jurisdiction to consider the question (Prosecutor v. Ruto, Kosgey and Sang, ICC A. Ch., Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, ICC-01/09-01/11-414, 24 May 2012, paras 23-33). Hence, the appeal should be lodged pursuant to Article 82(1)(d) and not under Article 82(1)(a) (paras 29 and 33; similarly, see Prosecutor v. Muthaura, Kenyatta and Ali, ICC A. Ch., Decision on the appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled "Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute", ICC-01/09-02/11-425, 24 May 2012).
   The purpose of an admissibility challenge and, by extension, an appeal under Article 82(1)(a), is to determine whether or not a case is admissible, and generally speaking, the admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge (Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., ICC-01/04-01/07-1497, 25 September 2009, para. 56).
   Questions of admissibility of the case may arise at different junctures of the process and interlocutory appeals have been accepted under this ground against a decision to deny a request to issue an arrest warrant because of inadmissibility (Situation in the DRC, ICC A.Ch., Judgment on the Prosecutor’s Appeal against the decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”. ICC-01/04-169, 13 July 2006). However, the Appeals Chamber made clear that the admissibility of the case is not a criterion for the issuance of an arrest warrant (para. 45) and further that the circumstances were not such that a separate assessment of this issue was motivated (paras 46-53).

Author: Håkan Friman

Updated: 30 June 2016

[661] (b) A decision granting or denying release of the person being investigated or prosecuted;
This ground for interlocutory appeal applies to decisions by the Pre-Trial or Trial Chamber “granting or denying release”. However, it is not applicable to any decision having an impact on the detention or release of the person, such as a decision to confirm charges, and the effect or implications of a decision do not qualify or alter the character of the decision (Prosecutor v. Lubanga, ICC A. Ch., Decision on the admissibility of the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled "Décision sur la confirmation des charges" of 29 January 2007", ICC-01/04-01/06-926, 13 June 2007, paras 10-11, 15-16). With other words: “it is the nature or character of a decision and not its implications or effects which determine whether a party is entitled to bring an appeal pursuant to Article 82(1)(b)” (Prosecutor v. Mbarushimana, ICC A. Ch., Decision on the admissibility of the appeal of Mr Callixte Mbarushimana against the decision of Pre-Trial Chamber I of 28 July 2011 entitled “Decision on "Second Defence request for interim release”, ICC-01/04-01/10-438, 21 September 2011, para. 17). A decision rejecting a request that the Pre-Trial Chamber consider the admissibility of the case as it stood at the time of the issuance of the arrest warrant and, based on this, the validity of the arrest warrant was not considered a decision on the question of whether to grant or deny the appellants release (para. 17). Further, interlocutory appeal against a decision on the issuance of a warrant of arrest does also not fall under this provision and instead requires leave for appeal (see e.g. Prosecutor v. Al-Bashir, ICC A. Ch., Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, ICC-02/05-01/09-73, 3 February 2010).
   A decision on a request for staying an already ordered release is also not a “decision granting or denying release” and cannot be appealed under Article 82(1)(b) (Prosecutor v. Mbarushimana, ICC A. Ch., Reasons for “Decision on the appeal of the Prosecutor of 19 December 2011 against the ‘Decision on the confirmation of the charges’ and, in the alternative, against the ‘Decision on the Prosecution’s Request for stay of order to release Callixte Mbarushimana’ and on the victims’ request for participation” of 20 December 2011, ICC-01/04-01/10-483, 24 January 2012, para. 31).
   A decision granting conditional release is “a decision granting or denying release” regardless of the fact that implementation of the decision has been deferred (Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa”, ICC-01/05-01/08-631, 2 December 2009, para. 36).
   Moreover, the decision must concern the “person being investigated or prosecuted” by the Court, which excludes, for example, detained witnesses who have been transferred from a State to the Court for giving evidence but who are not subject to a warrant of arrest issued by the Court (Prosecutor v. Katanga, ICC A. Ch., Decision on the admissibility of the appeal against the “Decision on the application for the interim release of detained Witnesses DRC-D02-P0236, DRC-D02-P0228 and DRC-D02-P0350”, ICC-01/04-01/07-3424, 20 January 2014, paras 37-38).
   In addition, the error must relate to the “decision appealed”, which follows from rule 158(1), and a challenge that relates to something which was only assessed in previous decision, such as the risk of flight, may not be brought up in the appeal against a subsequent decision (Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 6 January 2012 entitled “Decision on the defence’s 28 December 2011 ‘Requête de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo’”, ICC-01/05-01/08-2151, 5 March 2012, para. 29).
   It may be noted that the periodic review of a ruling on release or detention, under Article 60(3), is considered to be triggered first when a request for interim release has already been submitted and ruled upon and the warrant of arrest is not sufficient to trigger the review obligation (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté proviso ire de Thomas Lubanga Dyilo”, ICC-01/04-01/06-824, 13 February 2007, paras 94-100). Hence, the absence of such review prior to a decision based on a request for interim release cannot be challenged on appeal. Further, a decision in response to a request for release, other than interim release, does not trigger the periodic reviews under Article 60(3) (paras 103-106).
   The grounds for arrest in Article 58(1)(b)(i)-(iii) are stated in the alternative and the conclusion that the assessment of one ground is affected by a procedural error does not mean that the decision must be reversed as long as continued detention is justified under one of the other grounds (Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 26 September 2011 entitled “Decision on the accused’s application for provisional release in light of the Appeals Chamber’s judgment of 19 August 2011”, ICC-01/05-01/08-1937, 23 November 2011, para. 68). In case of a reversal of the impugned decision due to procedural errors, the Appeals Chamber may remand the matter to the lower Chamber for new consideration, while ordering the person to remain in detention subject to the other Chamber’s decision on the matter (e.g. Prosecutor v. Bemba¸ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 27 June 2011 entitled “Decision on Applications for Provisional Release”, ICC-01/05-01/08-1626, 19 August 2011, para. 87).

Author: Håkan Friman

Updated: 30 June 2016

[662] (c) A decision of the Pre-Trial Chamber to act on its own initiative under Article 56, paragraph 3;
There has not yet been a decision whereby a Pre-Trial Chamber has acted on its own motion with respect to a unique investigative opportunity in accordance with Article 56(3) and, thus, no appeal regarding this matter.

Author: Håkan Friman

Updated: 30 June 2016

[663] (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
All other decisions may, with leave for appeal, be subject to interlocutory appeal if it is a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
   Initially, the Pre-Trial and Trial Chambers were very reluctant to grant leave for appeal. An attempt by the Prosecutor to seek extraordinary review of a decision ruling out an appeal was rejected by the Appeals Chamber finding no room for such a review in the law of the Court (Situation in the DRC, ICC A. Ch., ICC-01/04-168, 13 July 2006). Hence, the certification process is put exclusively in the hands of the Chamber that rendered the challenged decision. Later, however, leave for appeal was granted more frequently. It is not a question of defending the impugned decision, but instead the application of a test (Prosecutor v. Muthaura, Kenyatta and Ali, ICC PT. Ch. II, Decision on the "Prosecution's Application for Leave to Appeal the 'Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence (ICC-01/09-02/11-185)'", ICC-01/09-02/11-253, 18 August 2011, para. 28).
   The consistent practice on leave to appeal, first established by the Appeals Chamber (Situation in the Democratic Republic of Congo, ICC A. Ch., ICC-01/04-168, 13 July 2006), is a two-component test.
   The first component is to identify whether there exists an “issue” that may be the subject of appeal – an “issue” is an identifiable subject or topic requiring a decision for its resolution that is not merely a question over which there is disagreement or conflicting opinion (Situation in the Democratic Republic of Congo, ICC A. Ch., ICC-01/04-168, 13 July 2006, para. 9). Put differently an “issue” is “constituted by a subject the resolution of which is essential for the determination of matters arising in the judicial cause under examination” and it may legal or factual or a mixed one (para. 9). Moreover, the “issue” must be one apt to significantly affect, in a material way, either the fair and expeditious conduct of the proceedings or the outcome of the trial (para. 10). The term “fair” is associated with the norms of a fair trial, which also include the expeditiousness of the proceedings, and it must be interpreted and applied and accordance with internationally recognized human rights (para. 11; see also Articles 64(2), 69(1) and 21(3)). The principles of a fair trial are not confined to the trial proceedings but apply to the criminal investigation and pre-trial proceedings as well (para. 11). The term “proceedings” also includes prior and subsequent proceedings (para. 12). A forecast must be made of the possible implications of the given issue being wrongly decided on the outcome of the case (para. 13).
   The second component of the test is whether the “issue” is one “for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings”. Hence, the “issue” must be such “that its immediate resolution by the Appeals Chamber will settle the matter posing for decision through its authoritative determination, ridding thereby the judicial process of possible mistakes that might taint either the fairness of the proceedings or mar the outcome of the trial” (Situation in the Democratic Republic of Congo, ICC A. Ch., ICC-01/04-168, 13 July 2006, para. 14).The term “advance” should be understood as moving the case forward by ensuring that the proceedings follow the right course (para. 15). Here too, the term “proceedings” should be understood broadly (para. 17). By the term “immediate” is required the prompt reference of the issue to the Appeals Chamber and this Chamber, in turn, must render its decision as soon as possible (para. 18).
   Consequently, the Chambers have generally applied the following scheme (e.g. Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the Prosecution's Application for Leave to Appeal the ‘Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused’, ICC-01/04-01/06-1417, 2 July 2008, paras 17-18). The criteria are: a) Whether the matter is an "appealable issue"; b) Whether the issue at hand could significantly affect: i) the fair and expeditious conduct of the proceedings, or ii) the outcome of the trial; and c) Whether in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber could materially advance the proceedings. The requirements a), b) and c) are cumulative and therefore the failure to fulfill one or more of them is fatal to an application for leave to appeal. Assessing whether the issue would indeed significantly affect one of the elements of justice in i) or ii), the Chamber “must ponder the implications of a given issue being wrongly decided” on the fairness and expeditiousness of the proceedings or the outcome of the trial, performing an “exercise [that] involves a forecast of the consequences of such an occurrence” (Situation in the Democratic Republic of Congo, ICC A. Ch., ICC-01/04-168, 13 July 2006, para. 9).
   It has been held that the ‘outcome of the trial’ at the trial level can only be a judgment (pursuant to Article 74) in which an accused is found individually criminally responsible for all or parts of the counts as confirmed, or not to be; with other words a pronouncement of guilt or an acquittal. During the subsequent appeals proceedings, however, the Statute provides the Appeals Chamber with other options in which it can ‘significantly affect’ the outcome of the trial proceedings, including the repetition of (certain parts of) the trial proceedings as envisaged by the Prosecution (Prosecutor v. Ruto and Sang, ICC T. Ch. V(a), Decision on Prosecution’s Application for Leave to Appeal the “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, ICC-01/09-01/11-817, 18 July 2013, para. 22).
   It is not sufficient for the purposes of granting leave to appeal that the issue for which leave to appeal is sought is of general interest or that it may arise in future pre-trial or trial proceedings (Situation in Uganda, ICC PT. Ch. II, Decision on Prosecutor's Application for Leave to Appeal in part Pre-Trial Chamber II's Decision on the Prosecutor's Applications for Warrants of Arrest under Article 58, ICC-02/04-01/05-20, 19 August 2005, para. 30). It is also insufficient that an appeal may be legitimate or even necessary at some future stage, as opposed to requiring immediate resolution by the Appeals Chamber in order to materially advance the proceedings (Prosecutor v. Bemba, ICC T. Ch., Decision on the prosecution and defence applications for leave to appeal the “Decision on the admission into evidence of materials contained in the prosecution's list of evidence”, ICC-01/05-01/08-1169, 26 January 2011, para. 25).
   The applicant for leave is required to identify a specific issue which has been dealt with in the relevant decision and which constitutes the appealable subject. In Gbagbo, the Pre-Trial Chamber sought, to the extent possible, to give the defence submissions an “effective interpretation, rather than rejecting proposed issues for incompleteness of argument” (Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the Defence request for leave to appeal the “Decision on the Confirmation of Charges against Laurent Gbagbo”, ICC-02/11-01/11-680, 11 September 2014, para. 10). Nonetheless, the Chamber concluded that none of the issues identified by the defence met the criteria of Article 82(1)(d) because: (i) some issues proposed by the defence were in fact extraneous to the decision; (ii) other issues misrepresented the decision or involved various disagreements with the decision with no identifiable impact on the confirmation of charges against Gbagbo; (iii) other issues arose out of the decision but, in the conclusion of the Chamber, did not significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial. The Chamber then provided detailed reasons concerning each of the proposed issues.
   In practice, the Appeals Chamber has generally accepted the Pre-Trial or Trial Chamber’s determination of what is an appealable issue (e.g. Situation in Uganda, ICC A. Ch., ICC-02/04-179, 23 February 2009, cf. the dissenting opinion of Judge Pikis; Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, ICC-01/04-01/06-1433, 11 July 2008, para. 11, cf. dissenting opinion of Judge Song). However, the Appeals Chamber may address various certified “issues” together (e.g. Prosecutor v. Muthaura, Kenyatta and Ali, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber II dated 20 July 2011 entitled “Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence”, ICC-01/09-02/11-365, 10 November 2011, para. 44). Further, the Appeals Chamber may clarify or amend the “issue” (e.g. Prosecutor v. Katanga, ICC A. Ch., Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, ICC-01/04-01/07-476, 13 May 2008, para. 46; Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled “Decision on the Modalities of Victim Participation at Trial”, ICC-01/04-01/07-2288, 16 July 2010, paras 56-57, 88-90). A certified issue may also be rendered moot by a subsequent decision (e.g. Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber I, ICC-01/04-01/07-776, 26 November 2008, para. 11).

Author: Håkan Friman

Updated: 30 June 2016

[664] 2. A decision of the Pre-Trial Chamber under Article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis. 
The Pre-Trial Chamber’s power, under Article 57(3)(d), to authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9, was very controversial during the negotiations of the Statute (see Friman, 2001, at 507-509). Hence, an explicit provision on interlocutory appeals, to be heard on an expedited basis, was introduced. Since no such authorization has been granted there are not yet any appeals on this ground.

Author: Håkan Friman

Updated: 30 June 2016

[665] 3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence.
Neither Article 82(3) nor rule 156(5) stipulate in which circumstances suspensive effect should be ordered, and thus, this decision is left to the discretion of the Appeals Chamber which will determine the matter on a case-by-case basis (Prosecutor v. Lubanga, ICC A. Ch., Decision on the request of Mr. Thomas Lubanga Dyilo for suspensive effect of his appeal against the oral decision of Trial Chamber I of 18 January 2008, ICC-01/04-01/06-1290 , 22 April 2008, para. 7). When examining a request for suspensive effect, the Appeals Chamber “will consider the specific circumstances of the case and the factors it considers relevant for the exercise of its discretion under these circumstances” (e.g. Prosecutor v. Bemba, Musamba, Kabongo, Wandu and Arido, ICC A. Ch., Decision on the Prosecutor's urgent request for suspensive effect of the “Decision ordering the release of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido” of 21 October 2014, ICC- 01/05-01/13-718, 22 October 2014, para. 5).
   The Appeals Chamber may require that the implementation of the impugned decision would create an irreversible situation that could not be corrected if the Appeals Chamber eventually were to find in favour of the appellant (para. 8). The suspension could, for example, relate to the release of the suspect although the detention is considered necessary to secure his or her presence at trial (Prosecutor v. Lubanga, ICC A. Ch., Reasons for the decision on the request of the Prosecutor for suspensive effect of his appeal against the "Decision on the release of Thomas Lubanga Dyilo", ICC-01/04-01/06-1444, 22 July 2008, and Prosecutor v. Lubanga, ICC A. Ch., Decision on the Prosecutor's request to give suspensive effect to the appeal against Trial Chamber I’s oral decision to release Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-2536, 23 July 2010). Another reason may be that the decision “could potentially defeat the purpose of the […]  appeal” (Prosecutor v. Lubanga, ICC A. Ch., Reasons for the decision on the request of the Prosecutor for suspensive effect of his appeal against the "Decision on the release of Thomas Lubanga Dyilo", ICC-01/04-01/06-1444, 22 July 2008, para. 10). The standard is not met in case the Appeals Chamber is able to reverse, confirm or amend the impugned decision irrespective of whether the proceedings before Trial Chamber continue (Prosecutor v. Bemba, ICC A. Ch., Decision on the Request of Mr Bemba to Give Suspensive Effect to the Appeal Against the “Decision on the Admissibility and Abuse of Process Challenges”, ICC-01/05-01/08-817, 9 July 2010, para. 11; Prosecutor v. Ruto, Kosgey and Sang, ICC A. Ch., Decision on the requests of Mr Ruto and Mr Sang for suspensive effect, ICC-01/09-01/11-391, 29 February 2012, para. 10; Prosecutor v. Muthaura, Kenyatta and Ali, ICC A. Ch., Decision on the request of Mr Kenyatta and Mr Muthaura for suspensive effect, ICC-01/09-02/11-401, 29 February 2012, para. 10).
   Resolution of the question whether the accused’s absence from the upcoming trial hearings would be permitted, met the requirements because the decision, if overturned, would mean that the trial had to re-start in his presence and that witnesses who testified in his absence may be unwilling or unable to return to testify again (Prosecutor v. Ruto and Sang, ICC A. Ch., Decision on the request for suspensive effect, ICC-01/09-01/11-862, 20 August 2013). But it is not sufficient that the potential effect that the enforcement of the impugned decision might have on the witnesses is largely speculative (Prosecutor v. Ruto and Sang, ICC A. Ch., Decision on Mr William Samoei Ruto's request for suspensive effect, ICC-01/09-01/11-1370, 17 June 2014, para. 9).
   However, the threshold need not be so high. It may be sufficient that, absent a resolution by the Appeals Chamber, the Trial Chamber could be considering additional material with resulting effects on the fairness and expeditiousness of the trial and the outcome and that there is a risk for unnecessary appeals (Prosecutor v. Lubanga, ICC A. Ch., Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber I's Decision on Victim's Participation of 18 January 2008, ICC-01/04-01/06-1347, 22 May 2008, paras 19-20). Other considerations are the need to preserve the integrity of the proceedings, and the delay that a suspension would cause weighed against the impact that continuing the proceedings before the Trial Chamber based on the impugned decision could have, in particular, on the rights of the accused, should the Appeals Chamber eventually reverse or amend the decision (Prosecutor v. Katanga, ICC A. Ch., Decision on the request for suspensive effect of the appeal against Trial Chamber II's decision on the implementation of regulation 55 of the Regulations of the Court, ICC-01/04-01/07-3344, 16 January 2013, paras 8-9).
   In any case, a party claiming suspensive effect must present persuasive reasons why the absence of a stay would have consequences that “would be very difficult to correct” or that “may be irreversible" (cf. Prosecutor v. Gbagbo, ICC A.Ch., Decision on Côte d’lvoire’s request for suspensive effect of its appeal against the “Decision on Côte d’lvoire’s challenge to the admissibility of the case against Simone Gbagbo” of 11 December 2014, ICC-02/11-01/12-56, 20 January 2015, paras 14-18).
   An order for suspensive effect is aimed at preserving the situation existing prior to the issuance of the impugned decision and the suspension may not go beyond that scope, for example by being directed to domestic proceedings (Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Decision on the request for suspensive effect and the request to file a consolidated reply, ICC-01/11-01/11-480, 22 November 2013, paras 15-18).
   Quite apart from this provision on suspensive effects of an appeal is the issue of a stay of the entire process. The Appeals Chamber has unanimously held that it has no power to order stay of all proceedings before another Chamber (Prosecutor v. Lubanga, ICC A. Ch., Reasons for "Decision of the Appeals Chamber on the Defence application 'Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense' filed on 20 February 2007" issued on 23 February 2007, ICC-01/04-01/06-844, 9 March 2007, para. 3). Nonetheless, the suspension of the decision that is subject to an appeal may well affect the proceedings of the Chamber which has issued the impugned decision and this is accepted insofar it does not by implication necessitate the suspension of all the proceedings before the other Chamber (Prosecutor v. Lubanga, ICC A. Ch., Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber I's Decision on Victim's Participation of 18 January 2008, ICC-01/04-01/06-1347, 22 May 2008, para. 25). Furthermore, the Appeals Chamber has accepted a power to stay the entire proceedings because of breaches of the fundamental rights of the suspect or the accused by his or her accusers, which may be either a permanent stay (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 (2) (a) of the Statute of 3 October 2006, ICC-01/04-01/06-772, 14 December 2006, paras 37-39) or a conditional one (Prosecutor v. Lubanga, A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”, ICC-01/04-01/06-1486, 21 October 2008, paras 80-83). Such a stay is not, however, based upon Article 82(3).

Author: Håkan Friman

Updated: 30 June 2016

[666] 4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under Article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.
The “Decision establishing the principles and procedures to be applied to reparations” by the Lubanga Trial Chamber (Lubanga, ICC T. Ch. I, ICC-01/04-01/06-2904, 7 August 2012) established principles relating to reparations as well as some procedures. Due to the latter feature, the Appeals Chamber was persuaded to consider the decision as an order for reparations and, thus, subject to appeal in accordance with Article 82(4) (Prosecutor v. Lubanga, ICC A. Ch., Decision on the admissibility of the appeals against Trial Chamber I’s “Decision establishing the principles and procedures to be applied to reparations” and directions on the further conduct of proceedings, ICC-01/04-01/06-2953, 14 December 2012, para. 51). An order for reparations may not be appealed in accordance with Article 82(1)(d) (para. 64).
   The convicted person has an unencumbered right to appeal orders for reparations, and this right is not limited to monetary awards (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, para. 66). Victims are considered parties to the reparations proceedings and hence they may be entitled to bring an appeal (para. 67). Such victims may also include individuals who did not participate in the proceedings concerning the accused person’s guilt or innocence or the sentence insofar they have requested reparations (para. 69). Since the reparations proceedings are a distinct stage of the process, also victims who’s right to participate was withdrawn or rejected and victims who participated in the proceedings concerning guilt or innocence or on sentencing may have a right to appeal (paras 70-71). However, an appeal cannot be made with reference to the interests of unidentified victims who have not made requests but who may benefit from a collective award (para. 72).
   An appeal pursuant to Article 82(4) does not mean the automatic suspension of the order for reparations. Instead a request for suspensive effect must be made in accordance with Article 82(3) and rule 156(5), notwithstanding the fact that the wording of rule 156(5) does not cover appeals against reparation orders under Article 82(4) ((Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, paras. 79-80). In suspending the execution of the reparation order, the Appeals Chamber attached weight to the undesirability of having to halt or revise later the ongoing engagement with victims in accordance with the order and the fact that the order could not in any case be executed until the accused’s conviction had been confirmed on appeal (paras 83 and 86).
   The standard of review with respect to appeals against a reparations order is the same as for all other appeals (Prosecutor v. Lubanga, ICC A.Ch., Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, para. 40).

Cross-references:
Rules 154, 155 and 156
Regulations 64 and 65

Doctrine:

1. Gideon Boas et al., "Appeals, Reviews, and Reconsideration", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, Ch. 6.
2. Helen Brady, "Appeals and Revision", in Roy S Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 575-603.
3. Håkan Friman, "Interlocutory Appeals in the Early Practice of the International Criminal Court", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009.
4. Håkan Friman, "Investigation and Prosecution", in Roy S Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2014.
5. Alena Hartwig, "Appeal and Revision", in Christoph Safferling (Ed.), International Criminal Procedure, Oxford University Press, Oxford, 2012, pp. 531-539.
6. Robert Roth/Marc Henzlin, "The Appeal Procedure of the ICC", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court – A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1535-1558.
7. Christopher Staker, "Article 82", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1475-1480.

Author: Håkan Friman

Updated: 30 June 2016

[667] Proceedings on appeal
General Remarks
Article 83 deals with powers and procedures of the Appeals Chamber in the context of appellate proceedings. The provision performs the same role as Árticle 57 on the "Functions and Powers of the Pre-Trial Chamber" and Article 64 on "Functions and Powers of the Trial Chamber".

Author: Mark Klamberg

Updated: 30 June 2016

[668] 1. For the purposes of proceedings under Article 81 and this Article, the Appeals Chamber shall have all the powers of the Trial Chamber.
Article 83(1) only applies to proceedings under Article 81, which excludes interlocutory appeals. This is confirmed later in subsequent paragraphs: appeals againt the decisions on conviction or acquittal (paragraph 2(a)), ordering a new trial (paragraph 2(b)) and sentence (paragraph 3) (Prosecutor v. Lubanga, Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled "Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence", ICC-01/04-01/06-568, ICC A. Ch. 13 October 2006, para. 16).

Author: Mark Klamberg

Updated: 30 June 2016

[669] 2. 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 appealed 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.

For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment.
This provision allows the Appeals Chamber to reverse as well as amend the decision and sentence. This means that the Appeals Chamber may itself determine issue of fact. However, as already indicated in the comment on Article 81, the Statute envisages that trial proceedings, involving fact-finding, will be held before the Trial Chambers, not the Appeals Chamber.

Author: Mark Klamberg

Updated: 30 June 2016

[670] 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7.
As already indicated in the comment on Article 81(2), the  Appeals Chamber may vary the sentence if there is a disproportion between the crime and the sentence.

Author: Mark Klamberg

Updated: 30 June 2016

[671] 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law.
During the drafting of the Rome Statute ther was debate whether the Appeals Chamber was unanimity was required for a decision or simply a majority (Staker, p. 1484 and Schabas, p. 956). The wording for paragraph 4 seems to suggest that concern of the majority and minority in relation to a procedural error or error of fact should be expressed within the judgement whereas a judge may deliver a separate or dissenting opinion on a question of law. In practice dissenting and separate opinions have included not only questions of law but also views on procedural facts and errors of fact (Prosecutor v. Lubanga, Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute”, Dissenting Opinion of Judge Anita Ušacka, ICC A. Ch., 1 December 2014).

Author: Mark Klamberg

Updated: 30 June 2016

[672] 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted.
Paragraph 5 is an exception if the rejection of in absentia proceedings and may be contrasted with Articles 63 76(4) the later provding that "[t]he sentence shall be pronounced in public and, wherever possible, in the presence of the accused."

Cross-references:
Rules 156, 157, 153, 158

Doctrine:

1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 950-957.
2. Christopher Staker, "Article 83—Proceedings on Appeal", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1481-1485.

Author: Mark Klamberg

Updated: 30 June 2016

[673] Revision of conviction or sentence
General Remarks
This provision provides for revision which is different from appeal in the sense that revision does challenge the conclusions of the Trial Chamber. Instead it reviews a decision based upon facts that were not available at trial. The mechanism of revision is familiar both at the international level and many national jurisdictions although there may differences when the mechanism may be applied. Proceedings of this kind is normally regarded as an extraordinary remedy and are more common in civil law systems. In common law systems this type of proceedings are brought before a court of appeal. (Staker, p. 1488, Schabas, p. 959).
   At the ad hoc tribunals it is called "review", see ICTY Statute, Article 26 and ICTR Statute, Article 25.

Author: Mark Klamberg

Updated: 30 June 2016

[674] 1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused's death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person's behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that:
(a) New evidence has been discovered that:
(i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and
(ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict;
(b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified;
(c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under Article 46.
Revisions proceedings can only be brought by the person convicted or certain others on behalf of the convicted. This includes the Prosecutor. However, the Prosecutor can only bring revision against a conviction, not against an acquittal.
   Sub-paragraph (a) provides for revision when "new evidence" has been discovered. For revision,  it is required that this new evidence was not available at the time of the trial and is sufficiently important in the sense that it would have affected the outcome of the trial.
   Revision is also possible under sub-paragraph (b) if it is newly discovered that the evidence was false, forged or falsified.
   Finally, revision is possible under sub-paragraph (c) when "[o]ne or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty".

Cross-references:
Rules 159, 160, 161
Regulations 62, 66

Author: Mark Klamberg

Updated: 30 June 2016

[675] 2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate:
(a) Reconvene the original Trial Chamber;
(b) Constitute a new Trial Chamber; or
(c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised.
Paragraph 2 provides for the procedure on revision which is divided in two stages which establishes a "filter" mechanism for revision applications. The purpose is to prevent "frivolous applications" (Staker, p. 1495).
    First, the Appeals shall consider whether the application is "unfounded". If the Appeals Chamber finds the application meritorious it may reconvene the original Trial Chamber; constitute a new Trial Chamber; or retain jurisdiction over the matter, "with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised".

Doctrine:

1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 958-963 .
2. Christopher Staker, "Article 83—Proceedings on Appeal", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp. 1487-1497.

Author: Mark Klamberg

Updated: 30 June 2016

[676] Compensation to an arrested or convicted person
General Remarks
Article 85 contains a number of provisions concerning compensation to defendants for unjust arrest, detention or conviction. Paras. 1 and 2 are taken almost verbatim from relevant human rights instruments (see Article 9(5), 14(6) ICCPR; Article 5(5) ECHR, Article 3 of Additional Protocol No. 7 to the ECHR; similarly Article 10 ACHR) . There are no comparable norms in the legal texts of other international tribunals, although the ad hoc Tribunals have in principle allowed claims for compensation for miscarriages of justice or violations of defence rights (see Zappala, at pp. 1579–1582). Procedural rules for claims under Article 85 are contained in Rules 173-175.
     The wording of several provisions (“enforceable right”, “compensated according to law”) might be interpreted as a sign that compensation under Article 85 may be claimed not only from the Court, but also from states under national proceedings mandated by Article 85 (Staker, MN. 6). Those peculiarities in the wording are, however, most likely due to the fact that Article 85(1) and (2) were imported almost verbatim from human rights treaties (see Zappala at 1582); in fact, Rules 173-175 refer solely to compensation claimed directly from the Court.
     As Rule 173(3) shows, Article 85 refers only to monetary compensation, not to, e.g., claims that a violation of the defendant’s rights must lead to a termination of proceedings. However, as Article 85(3) presupposes, such claims may in principle be made under the Statute – the Court had occasion to pronounce on this question, under Article 21(3), in the Lubanga case (see the commentary to Article 20(3), as well as ICC-01/04-01/06-512 of 3 October 2006; ICC-01/04-01/06-772 of 14 December 2006).

Cross-references:
Rules 173, 174, 175

Author: Björn Elberling

Updated: 30 June 2016

[677] 1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Article 85(1) deals with compensation for unlawful arrest and/or detention. Its wording is substantially identical to Article 9(5) ICCPR and Article 5(5) ECHR. An arrest or detention is, first of all, unlawful under Article 85(1) if it is in violation of the Statute. The wording is not clear on whether a violation of other norms of international law would also render an arrest or detention unlawful under Article 85(1), but one may presume that this is the case given the applicability of general international law under Article 21 and the drafting history of Article 85(1) (see Staker, MN 2). Given that it is states which will arrest suspects, the most interesting question is whether Article 85(1) also applies to arrest and detention by State authorities in connection with Court proceedings, which may be unlawful also under national law. One argument for applying Article 85(1) to such situations is that Article 59(1) specifies that arrest shall be in accordance with national laws, thus making compliance with national laws a requirement also under the Statute. (Cf. Staker, MN. 2)

Cross-references:
Rules 173,  174

Author: Björn Elberling

Updated: 30 June 2016

[678] 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her.
Article 85(2) applies to compensation for unjust conviction. Its wording is substantially identical to that of Article 14(6) ICCPR and Article 3 of the Additional Protocol No. 7 to the ECHR. (Article 85(2) does not contain a reference to a person being pardoned after a finding that there had been a miscarriage of justice – this because a power of pardon is not foreseen in the Rome Statute.) The provision sets up four requirements for such compensation: First, the person must have been convicted by a final decision (i.e. not only by a judgment in first instance still open to appeal) and must have suffered punishment as a result of this judgment. Second, the conviction must have been reversed, presumably after a revision pursuant to Article 84. Third, this reversal must have been based on evidence showing a miscarriage of justice – the exact definition of this term will have to be left to the future jurisprudence of the Court. Finally, the late disclosure of this evidence must not be wholly or partially attributable to the convicted person – this requirement basically repeats what is already a requirement for the availability of the revision procedure based on new evidence under Article 84(a)(i) (see the commentary thereto; see also Zappala at 1583, who argues in favor of partial compensation, to be given at the discretion of the court, where the non-disclosure was partly attributable to the person convicted).

Cross-references: 
Article 84, Rules 173, 174

Author: Björn Elberling

Updated: 30 June 2016