‘Oops, we misplaced the keys…too bad!’: The International Criminal Court and the fiasco of Mr Jean-Pierre Bemba’s compensation claim

Background

On 18 May 2020, over a year after Mr Jean-Pierre Bemba Gombo filed a claim at the International Criminal Court (the Court) seeking compensation for alleged miscarriage of justice and for alleged destruction and damage caused to his property, the Pre-Trial Chamber dismissed the application. Mr Bemba was charged in 2008 with crimes against humanity and war crimes allegedly committed in the Central African Republic between 2002 and 2003. He was convicted by the Trial Chamber in 2016 and sentenced to 18 years imprisonment. However, on 8 June 2018, the Appeals Chamber overturned his conviction, after which he was released from detention. By the time of his release, he had spent 10 years at the Court’s detention facility in Scheveningen, The Netherlands. Following his acquittal, Mr Bemba filed a claim for compensation, based on Article 85 of the Rome Statute of the Court (Rome Statute). Mr Bemba alleged grave and manifest miscarriage of justice and requested compensation of not less than €68.6 million for his long detention, as aggravated damages, legal costs and for property damage. Alternatively, he requested the Court to invoke its ‘inherent power to make an award of financial compensation’ of ‘not less than €42.4 million for damage to his property’ or to order binding arbitration. Article 85(3), on which Mr Bemba’s claim was primarily founded, provides as follows:

In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.

Going by the Court’s jurisprudence and the very high standard of Article 85(3), it was unlikely that Mr Bemba’s claim for compensation arising from his prosecution and long detention would succeed. A distinction must be made between poor prosecutorial strategy or poor trial and courtroom management, and malicious or wrongful prosecution. The latter would undoubtedly occasion ‘grave and manifest miscarriage of justice’ within the meaning of Article 85(3). The former are perhaps just bad lawyering and bad ‘judging’ whose consequences may be losing the case (as the Prosecution did), having the judgment overturned on appeal, and unfortunately prolonged duration of trial and detention. Indeed, the wisdom of prosecuting Mr Bemba, the prosecutorial strategy employed, the conduct of proceedings, and reasoning in the conviction judgment may be questionable, and the Appeals Chamber indeed lamented over these aspects. However, it is improbable that the prosecution was malicious or wrongful. The Court’s handling of Mr Bemba’s claim for mismanagement and damage to his assets is, however, rather disturbing.

‘What happened to my Boeing 727-100?’

During his 10-year detention and trial, Mr Bemba’s assets were frozen or seized by Belgium, Portugal and the Democratic Republic of the Congo (DRC), acting on requests for co-operation in identifying, tracing, freezing and seizing Mr Bemba’s assets and property issued by the Court pursuant to Article 93(1)(k) of the Rome Statute. Cape Verde surrendered some of Mr Bemba’s monies to the Court’s Registry. The requests for co-operation are classified hence their precise content is unknown. However, it is indisputable that Mr Bemba’s assets were frozen as a result of the requests for co-operation issued by the Court, and Mr Bemba’s application and the Registry’s response thereto provide fascinating insight, detailing shocking allegations of acts and omissions by the Court’s Registry and Prosecution and authorities in Portugal, Belgium, the DRC and Cape Verde that resulted in severe deterioration of property and depreciation in value. To highlight a few examples, Mr Bemba alleged that after his assets were frozen, ‘[m]ortgages were left unpaid, taxes, parking fees and registration payments were ignored, income streams were abandoned, despite pleas from Mr. Bemba that they be maintained, and houses, cars, boats, and other physical property were neglected’. Portugal allegedly handed over to the Prosecution the keys and ownership documents of one plane it had grounded, but the Prosecution claimed to have misplaced the keys, only for them to resurface ten years later. Further, the Court had on 20 October 2009 noted that while Mr Bemba was reportedly wealthy, he was not at the time in a position to freely dispose of his assets, thereby recognising that due to Mr Bemba’s incarceration, he did not have access to the relevant information on some of his assets, nor did he exercise control over them.

Mr Bemba maintained that the Court was responsible for the failure to ensure proper management and preservation of the assets because these assets were seized or frozen pursuant to the Court’s requests for cooperation. Article 93(1)(k) of the Rome Statute imposes an obligation on state parties to provide assistance to the Court in ‘[t]he identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture’. The conceptual and practical complexities of this provision, including the question of the Court’s powers and responsibilities, were brought to the fore very prominently in Mr Bemba’s application.

The Court quite abruptly found that the primary responsibility for properly executing the Court’s requests in this regard lies with state parties and that neither the Court nor its Registry has any further role to play beyond issuing the requests and acting as a channel between the states and the Court, respectively. Further, the Court considered that Article 85(3) ‘was never meant to provide a remedy for damages of an economic and financial nature which are not the result of a grave and manifest miscarriage of justice’. The Court also dismissed Mr Bemba’s submission that the Court should resort to its ‘inherent’ powers to address this claim, arguing that the Court’s ‘statutory framework is specific and detailed enough as to satisfactorily and comprehensively set forth the Chamber’s powers and the requirements for their exercise’ and therefore no resort to ‘inherent’ powers is necessary. Consequently, the Court found that it had no powers, express or ‘inherent’, to entertain this Claim.

The Court’s approach is a rather perfunctory and evasive reading of its powers under Articles 85(3) and 93(1)(k), and its conclusions are respectfully legally questionable. The concept of ‘inherent’ powers is controversial and is, in any case, not exactly relevant to this analysis. The Court did not even have to look to this concept for its powers to consider this claim. The Court’s competence can be implied from the express provisions of the Rome Statute itself, and that is not the same thing as invoking ‘inherent’ powers. The seizure and freezing of Mr Bemba’s assets pursuant to the Court’s orders and requests and the alleged mismanagement of the assets are indeed acts and omissions that are inseparable from his prosecution; Mr Bemba’s prosecution and the seizure of his assets are inextricably related. It is inconceivable that the Court would have powers under Article 93(1)(k) to request state parties to seize, freeze and take other action against Mr Bemba’s assets, but the same Court would have absolutely no obligations regarding the preservation of those assets, including those whose custody or access is transferred to the Court. Such a possibility would render Article 93(1)(k) meaningless. By treating these alleged acts and omissions as inseparable from the prosecution, the claim falls within the scope of Article 85(3), at the very least by implication.

Engaging the Court’s international responsibility?

Mr Bemba’s claim also raises the broader question of responsibility for internationally wrongful acts arising from acts performed by states ostensibly at the request or on behalf of international organisations. The International Law Commission has dealt with this issue extensively, leading to the adoption of the Articles on the Responsibility of International Organisations (ARIO). Without prejudice to other provisions of ARIO that may be applicable, I highlight in particular Articles 6 and 7 of ARIO. Even though the process by which state parties comply with the Court’s requests issued pursuant to Article 93(1)(k) of the Rome Statute is governed by municipal procedural laws, this does not negate the fact that the execution is done at the request and on behalf of the Court.

An argument may be made that attribution can be approached based on Article 6 of ARIO which considers the conduct of an organ or agent of the organisation as that of the organisation. An agent is defined in Article 2(d) to include a ‘person or entity … charged by the organisation with carrying out, or helping to carry out, one of its functions, and thus through whom the organisation acts’. The Commentary clarifies that ‘agent’ could refer to both natural and legal persons. Thus, where the acts which led to Mr Bemba’s financial loss were caused by organs of the Court, the Court is responsible. If ‘agent’ is understood broadly, it could also be argued that the concerned states are agents of the Court for purposes of implementing Article 93(1)(k) requests, and that their conduct would be attributable to the Court, meaning that the Court’s international responsibility is engaged when their acts cause the financial loss. However, it is improbable that ARIO envisaged such a broad interpretation of ‘agent’. Going by the clarification in the Commentary to Article 7, a state would only be considered as an agent for the purpose of Article 6 if its responsible organ is fully seconded to the Court for this purpose. In implementing Article 93(1)(k) requests, states act in fulfilment of their obligations under the Rome Statute to provide assistance to the Court; their responsible organs are not fully seconded to the Court, but remain state organs performing state functions.

A much stronger case for attribution may be made based on Article 7 of ARIO which attributes to an organisation the conduct of a state organ placed at that organisation’s disposal ‘if the organisation exercises effective control over that conduct’. According to the Commentary, Article 7 applies where the state organ in question ‘still acts to a certain extent as organ of the seconding State’. As mentioned above, this is indeed the position when states implement Article 93(1)(k) requests. Read together with Article 15 of ARIO which engages the organisation’s responsibility if it ‘directs and controls a State …. in the commission of an internationally wrongful act by the State’, the Article 7 threshold is evidently high, requiring evidence that the organisation exercised effective control over the conduct of the state, a rather strict test formulated decades ago by the International Court of Justice in Nicaragua case.

On the one hand, attribution may be arguably uncomplicated in relation to monies handed over to the Court by Cape Verde and the plane(s) whose ownership documents and keys were handed over to the Court by Portugal. Here, it is reasonable to conclude that the acts which led to losses of Mr Bemba’s assets were carried out by organs or agents of the Court rather than by states. It was the Court, through its organs and agents, that exercised control over these assets and it had either (almost) exclusive access or means of access to them. On the other hand, international responsibility for alleged spoliation arising from the process of seizing and freezing Mr Bemba’s other assets in Belgium, Portugal and the DRC, and from the (mis)management of these assets is a lot more complicated. This requires an examination of the factual circumstances in order to determine the exact nature of the Court’s involvement vis-à-vis the role played by the concerned states.

Conclusion

Whatever these duties and obligations may be, and whatever the approach for determining them, it is evident that Mr Bemba’s case raises the possibility, at least in some cases, of spoliation being attributed either to the Court or jointly to the Court and the concerned states, and their respective international responsibility being engaged. A thorough interrogation of the factual and legal circumstances of Mr Bemba’s claim is necessary. The Court has indeed done Mr Bemba and itself a disservice by refusing to engage in this examination, instead stripping itself of jurisdiction. It is also rather worrying that the Court took one year to conclude that it had no jurisdiction. As Moffett observed, ‘Bemba’s compensation claim was unlikely to succeed, but the fiasco points to a need for better asset management at the ICC including direction to State Parties to dispose of them or put them to use.’ While so far most of the cases before the Court have involved indigent persons, the case of Mr Bemba has indeed exposed the Court’s underbelly in exercising its powers under Article 93(1)(k). As the Court seeks to expand its practical reach beyond (mainly indigent) non-state actors, to potentially financially capable state actors, such as in Sudan and possibly in Afghanistan, Palestine and Ukraine, Article 93(1)(k) will become even more relevant. A thorough engagement with the conceptual boundaries and practical application of Article 93(1)(k) is necessary, in particular to clarify: the nature and extent of the Court’s (chambers, prosecution, registry) responsibilities; state parties’ responsibilities; and rights and obligations of the accused person. These questions lie at the very core of the Court’s integrity and credibility. By shirking its responsibility to judiciously examine Mr Bemba’s spoliation claims, the Court has thus missed a rare opportunity to set firm jurisprudence on a topic where international criminal justice does not have a lot of useful experience.