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Judges Decline to Order Congo, Belgium, and Portugal to Unfreeze Bemba’s Assets

International Criminal Court (ICC) judges of the chamber that tried Congolese opposition politician Jean-Pierre Bemba for war crimes and crimes against humanity have rejected his request to order Belgium, the Democratic Republic of Congo, and Portugal to unfreeze his assets.

Trial Chamber III has instead issued guidance on the steps the court’s Registry may take towards lifting the coercive measures imposed a decade ago on Bemba’s assets at the request of the court.

In a November 20, 2018 ruling, judges Geoffrey Henderson, Chang-ho Chung, and Kimberly Prost declined to order the three states to give Bemba an inventory of each property frozen, its location, and its value throughout the period of its detention. They also declined to order the Registry to disclose to Bemba all the filings it has that are related to the frozen assets.

Trial Chamber III clarified that an acquittal or other cessation of proceedings does not render coercive measures invalid, null, or void. Rather, the cooperation requests issued to states by the ICC remain, “but cease to have effect in the sense that states are no longer required to comply with them, for instance by keeping any assets frozen.” The judges added that this does not mean that assets are automatically released in the requested state. Rather, it is “for the state to determine what action to take under domestic law as a result of the conclusion of its obligation to assist the court through the freezing of assets.”

Last month, defense lawyer Peter Haynes faulted the Registry for not pursuing the unfreezing of Bemba’s assets, arguing that it was unlawful to maintain the freeze four months after his acquittal. He blamed the Registry for failing to provide an accurate inventory of the frozen assets, and appealed to judges to lift the freezing orders.

For its part, the Registry stated that unfreezing the assets was “complicated” since Bemba owes the court funds advanced to his lawyers, and because, following his witness tampering conviction, he was handed a €300,000 fine which he would pay “possibly using his frozen assets.” The fine has to be paid within three months of the date of its imposition, although Bemba is appealing what he terms an unfair and disproportionate penalty.

Furthermore, the Registry said the Appeals Chamber’s judgment acquitting Bemba did not contain any determination that the freezing orders “would cease to have effect as a result of the judgment,” and that the appeals chamber did not instruct the Registry to notify relevant states of the judgment.

The judges noted that freezing and seizure of assets was governed by Part 9 of the Rome Statute on cooperation between states and the court. They were therefore unable to instruct the Registry as to how to conduct its cooperation activities with states. Nonetheless, the judges advised on the Registry’s role following Bemba’s acquittal.

According to the judges, the court does not order the freezing or seizure of assets, but orders that cooperation requests be sent to a state to do so. The state decides to either directly enforce the court’s request for freezing or seizure if permitted under domestic law, or to use the information provided in the court’s request to initiate domestic proceedings to preserve the assets. The judges said irrespective of which approach the state applies, the assets are frozen or seized on the basis of actions taken by that state under its domestic law.

They added, “By the same token, the lifting of coercive measures, including the unfreezing of assets, must be done under domestic law. The Chamber thus notes that, contrary to the submissions received in this regard, it is not the competent body to order the lifting of any such orders.”

They said it was up to the Registry to inform the states that following Bemba’s acquittal, there was no longer any investigation or prosecution against him in this case, and that states are under no obligation to comply with any of the standing requests for cooperation. This would “trigger legal consequences under the respective domestic law … including the unfreezing of assets, where applicable,” and no further action was required from the judges in this regard.

Regarding Bemba’s debt to the court, the judges said the Registry was the competent body to arrange the repayment process in the way it sees fit, in consultation with Bemba. They added that the Registry was not barred from seeking states’ voluntary cooperation in securing the repayment of the advanced legal assistance fees.

Trial Chamber III also ruled that whether freezing orders should remain in force to secure the fine imposed on Bemba for witness tampering is outside its purview. Instead, the issue must be addressed by the Registry and Trial Chamber VII, which imposed the fine.

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