Unexploded Legal Ordnance [Updated]

[Christopher “Kip” Hale currently serves a legal advisor on atrocity crime investigations in conflict zones. Previously, Kip has worked at the American Bar Association, Extraordinary Chambers in the Courts of Cambodia, and the UN-International Criminal Tribunal for the former Yugoslavia.

Santiago Vargas Niño is a Legal Officer at the Tribunal for Peace of the Special Jurisdiction for Peace, Colombia. The views expressed in this article do not necessarily reflect the views of the Special Jurisdiction for Peace.]

Corrigendum: On 18 May 2020, the ICC Pre-Trial Chamber issued its decision that ruled against Mr. Bemba and his claim for compensation. In that decision, it was disclosed for the first time publicly that the President of the ICC confidentially instructed Mr. Bemba’s counsel to file their compensation claim with the Pre-Trial Chamber. Obviously, at the time of the writing of this article, neither the co-authors nor the public-at-large was privy to this confidential instruction. As such, the paragraphs below questioning Mr. Bemba’s selection of the Pre-Trial Chamber as a proper forum for his claim are inaccurate with the benefit of the newly disclosed information. In the interest of full accuracy and completeness, the co-authors have inserted this language to correct the record. However, the co-authors also take this opportunity to state that the underlying premise of, and arguments included in, these paragraphs (i.e. that there are better forums for Mr. Bemba’s claims) were confirmed by the Pre-Trial Chamber in their 18 May decision.

In 1995, the late Antonio Cassese famously stated that the ICTY was “like a giant who has no arms and no legs. To walk and work, he needs artificial limbs. These artificial limbs are the State authorities. Without their help the Tribunal cannot operate.” Undoubtedly, the same applies for the ICC, if not more so, considering the Court’s wider remit (i.e. more expansive territorial reach; preliminary examinations in 10 States; and investigations in 11 others). Adding insult to injury, its modest budget –€148 million for 2019 – is smaller than the ICTY’s yearly regular budget between 2010 and 2015. In this regard, rather than simply relying on State cooperation, the ICC depends on it.

The situation only got more complicated for the ICC when counsel for the acquitted Mr. Bemba filed an extraordinary claim for compensation and damages after the exceedingly controversial reversal of his conviction on appeal. The defence’s argument stands on two grounds: (i) an alleged “grave and manifest miscarriage of justice” that triggers the ICC’s discretionary power to award compensation under Article 85(3) RSt; or, alternatively, (ii) the losses caused to Mr. Bemba by the ICC’s alleged negligence in the management of his frozen assets, which give way to compensation pursuant to the ICC’s inherent powers.

As Kevin Jon Heller pointed out in an earlier post, “Bemba will almost certainly not receive any compensation under Art. 85(3).” If Mr. Bemba’s trial was a “parody of justice” it was due, in no small part, to his own campaign to influence witnesses. Thus, his request that “pursuant to Article 85 the claimant be awarded: (…) (d) A sum not less than €42.4 million for damage to his property”, as “a consequence of the miscarriage of justice suffered”, is not likely to succeed. Nevertheless, it is important to note that he submits that “[l]iability on the part of the ICC for loss consequential to a miscarriage of justice undoubtedly arises under Article 85 from the plain wording of Rule 175.”

This argument is unconvincing. Article 85(3), making no mention of property mismanagement, is limited to offering a discretionary remedy for “a grave and manifest miscarriage of justice (…) to a person who has been released from detention (…) for that reason.” Further, per the RPE’s explanatory note, Rule 175 is subordinate, in all cases, to Article 85(3). Thus, when interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” Mr. Bemba’s plain reading is far from plain. To agree with his interpretation that Rule 175 warrants compensation for damage, devaluation or destruction of property under Article 85(3) would stretch the “ordinary meaning” of these provisions to the point of breaking.

Furthermore, it is telling that some delegations gathered at Rome considered that “there should not be an unfettered right to compensation where a person is acquitted or released prior to the end of the Trial. The text of paragraph 3 is intended to limit the right to compensation to cases of grave and manifest miscarriages of justice.” As such, Mr. Bemba’s recourse to Article 85(3) is quite flawed. It is also surprising that, despite his heavy reliance on the RPE, Mr. Bemba did not submit his request for compensation to the Presidency of the ICC, as mandated by Rule 173. This would serve as the basis for a rejection of his main claim. Let us, therefore, turn to his alternative ground for compensation.

To start, is the ICC liable for the damages alleged by Mr. Bemba?

The core issue underlying Mr. Bemba’s claim is the attribution of damages to the ICC, as the authority ordering the identification, localisation, freezing, or seizure of Mr. Bemba’s assets. While the ICC should exercise a reasonable degree of care over impounded property, Mr. Bemba’s argument of negligence is far from straightforward.

Mr. Bemba’s brief contends that the Court’s lack of resources led to the unavailability of qualified staff to attend to such matters. Despite unwittingly reminding States that they are the ICC’s arms and legs (see, inter alia, paras. 137, 138, 140, 150, 167), Mr. Bemba claimed damages over the deterioration of his extravagant luxury goods from the ICC alone. Such a contention flies in the face of States’ duties under the Rome Statute.

Pursuant to Article 88, States “shall ensure that there are procedures available under their national law for all the forms of cooperation.” They shall also comply with ICC requests, inter alia, to identify, trace, and freeze or seize proceeds, property, and assets for the purpose of eventual forfeiture, under Article 93(1)(k). Contrary to Mr. Bemba’s claim that the ICC “designated how the freezing was to be carried out,” the ICC merely reminded States that they should perform these tasks “under procedures of national law.” The ICC could not have granted any more latitude to States or, conversely, been more forceful on something that falls within state sovereignty. States were simply expected to discharge this duty in good faith, that is, “to apply it in a reasonable way and in such a manner that its purpose can be realized.”

Executing a cooperation request under Article 93(1)(k) means that States are responsible for more than just the adoption of protective measures. They are also meant to guarantee that the “eventual forfeiture” of frozen assets will lead to the effective reparation of the victims of crime. In this light, Mr. Bemba’s argument on duty to manage and preserve assets is best directed at States, not the Court. Indeed, there is no reason why States that execute an ICC freezing order should be excused from observing the same standards that Mr. Bemba’s motion so profusely quotes.

Mr. Bemba’s position that, simply due to its international nature, the ICC can be treated as an “issuing State” in the context of cross-border freezing orders is baseless. Quite simply, the ICC is not a State, let alone a Member State of the Treaty on the Functioning of the EU. It is not and cannot fall under the subject matter of any EU regulation proposal, or Council framework decision on freezing orders. Arguendo the ICC was an issuing State, it would lead to the preposterous situation where any ICC request for assistance executed by The Netherlands, in any territory other than the Court’s premises, would have to be treated as a cross-border matter.

A much more reasonable – albeit less spectacular – approach would be to acknowledge that States executing an ICC freezing order are performing their own legal duties. It is, under this formulation, their primary responsibility to administer impounded goods with due diligence. Such a position is recognized in Mr. Bemba’s filing where it submits that States must set up measures to preserve the economic value of frozen assets under various UN and regional legal frameworks. Against this backdrop, it is unreasonable to demand that an organisation running on a budget well below € 200 million per annum should replace mature domestic judiciaries in the discharge of their fiduciary duty to preserve the riches of an accused individual.

Secondly, does Mr. Bemba have recourse to “the ICC’s inherent power to make an award of financial compensation”?

The ICC’s duty to “ensure that a trial is fair (…) and is conducted with full respect to the rights of the accused” would permit making an injured party whole. However, this power is not limitless. One limit on this power should be that it does not extend beyond violations of an accused’s core fair trial guarantees, such as the presumption of innocence or the reasonableness of pre-trial detention. The authorities cited in Mr. Bemba’s motion agree, namely the ICTR jurisprudence on inherent powers: Mr. Barayagwiza for violations of due process rights and Mr. Rwamakuba for violation of the right to legal assistance.

Furthermore, the ICTR resorted to “inherent powers” because, as acknowledged in Rwamakuba, “there [was] no explicit provision of the Statute or the Rules providing for an organ of this Tribunal to grant an effective remedy.” The same does not apply to the ICC. As stated above, Article 85 is the only avenue to remedy violations of the accused’s rights. Moreover, it was adopted to limit the right to compensation. This explicit reference bars the ICC from exercising inherent powers over claims that fall outside its statutory framework, such as Mr. Bemba’s claim for compensation of damages to his property. Given that this limitation is based upon a carefully negotiated multilateral treaty, as opposed to a statute affixed to a UN Security Council resolution, even more deference is owed to this framework.

Lastly, does Mr. Bemba have a right to bring his claim before the ICC Pre-Trial Chamber?

Since the motion accuses the ICC as a whole of damages that allegedly arose from shortfalls in bookkeeping, management, and cooperation, it is quite difficult to hold that this dispute concerns the judicial functions of the ICC. Thus, it falls outside the scope of Article 119(1) of the Rome Statute. This issue is significant because that is the sole provision concerning use of the Court for settlement of disputes that do not involve States. The filing also submits that Mr. Bemba’s claim is of a private law nature. Hence, it ultimately relies on a different treaty: the APIC. This fact makes Mr. Bemba’s recourse to the Pre-Trial Chamber all the more confusing, especially because he does not even attempt to justify why he chose it as the appropriate adjudicator.

Article 31(a) APIC imposes a duty upon the ICC to make provisions for appropriate means of settlement of private law disputes to which the Court is a party. Nothing in this provision or its context indicates that a Pre-Trial Chamber would be suited for the task. Rather, it appears that it would be entirely inappropriate to submit any such dispute to that forum. Notwithstanding labor or ethical matters, the ICC’s exclusive mandate is “to exercise its jurisdiction over persons for the most serious crimes of international concern.” It is not a claims commission. It is not an arbitral tribunal. It is a criminal court. Its only exercise of jurisdiction over torts – the reparation stage – is contingent upon a finding of individual criminal responsibility. Reparation orders must be addressed at a convicted person, informing him or her of their liability, specifying the type of reparation owed to victims of the crimes for which they were convicted. Had the drafters of the Statute intended the ICC to settle private law disputes concerning its entire operation through the Court’s chambers, they could have expressed as much. They did not.

While the filing may have elements of “smart PR,” as noted by Heller, it is more likely the case that a more nefarious public relations effect was desired: wounding the Court. However, simply put, Mr. Bemba has failed to establish a prima facie case over which the Pre-Trial Chamber could exercise its jurisdiction. Hence, his claim should be discarded altogether.

To be clear, arguing against Mr. Bemba having a course of action under the Rome Statute is not to call the Court blameless. As stated, the Court should exercise reasonable care over impounded property. The ICC should use this opportunity to improve its oversight of freezing orders. Mechanisms should be put in place for States to be notified expressly of their duties with respect to impounded property. Also, States, in whole or in part, should come up with ways for the financial burden of honoring these duties to be spread out amongst members states.

For its part, the ICC should consider cross-organ supervision over frozen assets and like matters, as well as developing methods to maintain transparent two-way communication with relevant State authorities. In fact, the ICC should take the lead in doing so because it will create a clear record as to where States are at fault.

Whether the ICC should grant Mr. Bemba some degree of material compensation, based on its supervisory role over the freezing orders, remains an open question. One that most certainly cannot, and should not, be answered by the ICC. It cannot be emphasized enough that the Court does not have jurisdiction to entertain the dispute. Yet, in any case, this episode should be a cautionary tale rather than an enormous financial hit for the Court to bear.