The ICC’s rejection of Bemba’s compensation claim points to need for reform

Tonny Raymond Kirabira, University of Portsmouth and Leïla Choukroune, University of Portsmouth

The International Criminal Court (ICC) recently rejected a claim for financial compensation by former Democratic Republic of Congo (DRC) vice president Jean Pierre Bemba after he was acquitted of war crimes and crimes against humanity on appeal in 2018.

The court’s decision has wider implications for international criminal law.

In 2016, the ICC convicted Bemba of the charges against him, and sentenced him to 18 years’ imprisonment for the crimes committed by his militia in the neighbouring Central African Republic in 2002 and 2003.

But, on 8 June 2018, the ICC Appeals Chamber acquitted him of all charges. According to some observers, his acquittal overturned an important victory for victims of sexual violence under international criminal law, thanks largely to evidentiary ambiguities and inconsistencies.

Bemba then filed a claim seeking over €69 million in damages he claimed he had suffered due to having had his assets frozen for a decade by the court. He also wanted to be compensated for legal expenses.

His claim consisted of two components. First, was a request for compensation pursuant to article 85 of the Rome Statute, on account of a grave and manifest miscarriage of justice during the hearing of the main case against him. The Rome Statue is the treaty that established the International Criminal Court in July 1998.

Second, was a request for compensation for the damage suffered by his property and assets, as a result of the court’s orders. He alleged that the court failed to properly manage and preserve his property.

The decision is a unique interpretation of the court’s powers and jurisdiction regarding compensation to those that are acquitted. The principal element relates to the cooperation of states with the International Criminal Court.

For the first time, the court restricted its responsibility under Article 93(1)(k) of the Rome Statute. Basically, its responsibility stops at requesting state parties to seize and freeze assets. It is then up to the states to preserve such assets and they cannot be held to account by the court for any mismanagement.

Narrow interpretation of Rome Statute

The court exercises a great degree of discretion when it comes to compensation. This is due to the ambiguity in the language of Article 85 of the Rome Statute, which gives the victim of unlawful arrest or detention, an enforceable right to compensation. Exceptional circumstances are provided for by Article 85(3) which states that;

…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.

But this is ambiguous because the terms “grave and manifest miscarriage of justice” are not defined in the statute, and so can lead to divergent interpretations.

This is the third claim for compensation to be rejected by the court. In 2015, the court rejected a claim by Mathieu Ngudjolo. The militia leader was accused of having committed war crimes and crimes against humanity in the DRC in 2003. He was acquitted in 2012.

Similarly, in 2016, the court rejected Jean-Jacques Mangenda-Kabongo’s request for compensation claim. Mangenda was a member of Bemba’s defence team and case manager. He had been convicted by the court of tampering with witnesses in Bemba’s initial trial.

Due to the legal ambiguity in the Rome Statute, the court has set a very high threshold for term the “grave and manifest miscarriage of justice”. In other words, the violations must be serious and exceptional.

A liberal interpretation of Article 21(3) could have allowed an expansive understanding of this problematic term. Such an interpretation would recognise internationally recognised human rights, like the right to compensation, within the courts decisions.

The narrow interpretation relates to the maintenance of seized property. In response to the claim for financial loss arising from destruction and damage to Bemba’s property in the DRC, Portugal and Belgium, the court indicated that it did not have the mandate to adjudicate on damage to assets resulting from the conduct of member states.

This line of argument isn’t convincing. State signatories to the Rome Stature are considered to be agents of the court. As such, their conduct relating to cases before the court would be subject to review by the court.

Potential impact of judgment

The court’s decision points to a need to amend the wording relating to the meaning of “grave and manifest miscarriage of justice” under the Rome Statute. It also has implications for international criminal law.

The practice of providing compensation for an acquitted accused is considered important in some domestic statutes. For example, in the UK, compensation for “miscarriage of justice” is possible, depending on the punishment and its consequences on the person’s life.

In Northern Ireland, more than £9m was paid in compensation between 2010 and 2019, to 16 people whose criminal convictions were overturned.

There is also no provision for compensation after acquittal under the statutory frameworks of the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, or the Special Court for Sierra Leone.

Nonetheless, the Rome Statute is an inspirational legal source to other tribunals. For example, Article 85 of the Rome Statute was adopted by the International Criminal Tribunal for Rwanda in its determination of the term “grave and manifest miscarriage of justice”.

The International criminal law court cannot practically lead the way in fixing this anomaly, since it is a member driven court. However, special international tribunals must evolve to reflect contemporary realities of people who are acquitted after long trials, and the need for compensation.

Regarding the responsibility to maintain property seized from an accused person, we observe a complex role of the court’s registry, with regard to support and follow up duties.

Nonetheless, there is clearly a need for administrative reforms. This decision suggests that the International Criminal Court might be reluctant to seize or freeze assets in the future. This needs to be considered, in light of the looming war crimes trials of former Sudanese President Omar al-Bashir, and warlord Ali Muhammad Ali Abd–Al-Rahman (Ali Kushayb).

Tonny Raymond Kirabira, PhD Researcher, University of Portsmouth and Leïla Choukroune, Professor of International Law and Director of the University Research and Innovation Theme in Democratic Citizenship, University of Portsmouth

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