Bemba Gombo reaction

Alex Whiting has an excellent Just Security post about the ICC Appeals Chamber's unfortunate decision in Bemba Gombo. Excerpt:

Put together, the two parts of the majority’s decision – its approach to the confirmation hearing and to the appellate process – upend the procedures at the ICC and turn the Court on its head. Properly conceived, the procedures at the ICC guarantee that the trial is the main event, as it should be. Only at trial is the evidence fully presented and challenged. The confirmation hearing and the appeal are bookends before and after the trial that ensure that there is sufficient evidence to require the defendant to submit to trial, that the trial was fairly conducted, and that the findings of the Trial Chamber were reasonable. The majority’s decision, however, elevates the before and after while diminishing the trial itself. The confirmation process now assumes greater importance than before: The Pre-Trial judges must now rule on all of the underlying acts in a mass atrocity case and the Trial Chamber cannot deviate from these findings even if adding evidence would not prejudice the accused and would help establish the truth. On the other end, the Appeals Chamber is freer to re-assess the facts from trial, reducing the standing of the trial judgment. This double shift away from the trial is inefficient and less likely to result in correct and just outcomes. It moves tasks that the trial judges are in the best position to perform to judges in the Pre-Trial and Appeals Chambers who are institutionally ill-suited to carry them out. It is not a good outcome for the Court.