Can Jean-Pierre Bemba’s claim for damages from the International Criminal Court (ICC) succeed where two previous ones failed? Bemba has filed a compensation claim for €68.8 million (US$ 77.7 million), which is much larger than those previously made to the court but also raises more grounds for compensation.

Before Bemba, two individuals had lodged compensation claims at the ICC. Like Bemba, former Congolese militia leader Mathieu Ngudjolo filed his compensation request after appeals judges upheld his acquittal. He filed the claim in August 2015, citing unlawful arrest and detention and a grave miscarriage of justice. The request was turned down [PDF] by Trial Chamber II four months later.

Ngudjolo, who had been in the court’s detention since February 2008, was acquitted in December 2012, after judges determined that the prosecution had not provided sufficient evidence. He was charged with war crimes and crimes against humanity, allegedly committed in Bogoro village in eastern Democratic Republic of Congo a decade earlier, while he purportedly led a militia group.

The other claim was lodged in April 2015 by Jean-Jacques Mangenda Kabongo, the former case manager for Bemba in his trial at the ICC for war crimes and crimes against humanity. Mangenda had been in ICC detention for nearly a year when, on October 21, 2014, a judge ordered his release pending his trial for corrupting witnesses. However, he remained in detention for nine more days, which he deemed to be unlawful detention.

Mangenda’s request for compensation for unlawful detention was rejected by Trial Chamber VI, which did not allow the defense to respond to the prosecution’s submissions and – unlike Trial Chamber II which handled Ngudjolo’s request – did not hold an oral hearing on the compensation claim.

Rule 174 of the court’s Rules of Procedure and Evidence provides that judges handling a compensation request may hold a hearing or determine the matter based on the request and any written observations by the prosecutor and the person who filed a request. A hearing relating to Bemba’s claim has been scheduled for May 9, 2019.

What the Court’s Law Provides

The three compensation claims have been made based on Article 85 of the court’s founding law, the Rome Statute, which governs compensation to an arrested or convicted person. However, the claimants have used different clauses of this article. Mangenda made his claim under Article 85(1), which provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ngudjolo invoked Article 85(1) and Article 85(3). Article 85(3) provides that “[i]n 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.”

Bemba has based his claim mostly on Article 85(3) but argues that Article 85(2) is applicable too, and that under both articles, a claimant can be entitled to damages for incarceration, compensation arising from aggravating features, and consequential financial losses.

Rule 173(2), which all applicants cited, requires that the request for compensation shall be submitted not later than six months from the date the person making the request was notified of the decision of the court concerning unlawful arrest or detention; reversal of a conviction; or existence of a grave and manifest miscarriage of justice.

In terms of procedure, the court’s rules provide that anyone seeking compensation on any of those grounds shall submit a written request to the court’s Presidency, which then designates a chamber composed of three judges to consider the request. These judges shall not have participated in any earlier judgement of the court regarding the person making the request. The request should contain the grounds and the amount of compensation.

Damages Sought

Ngudjolo requested €906,346 for material and moral damage he had suffered. This was comprised of €80 for each of 1,781 days of detention; €360,000 in moral damages; expenses on his children over his five-year detention at an annual cost of €24,973, which totalled €124,866; €9,000 to buy a vehicle; and €270,000 to purchase a house. Ngudjolo also asked the court to order the implementation of awareness-raising campaigns particularly in Bedu Ezekere area in eastern Congo, to explain the reasons behind his acquittal.

However, judges ruled that since defense lawyers had failed to establish that Ngudjolo had suffered a grave and manifest miscarriage of justice, it was not necessary to examine the other criteria set out in Article 85(3). The judges hence decided that there were no grounds for them to exercise their discretion to award compensation to Ngudjolo.

For his part, Mangenda sought compensation of €3,000 per day for unlawful detention, which amounted to €27,000. But Trial Chamber VI concluded on February 26, 2016, that there was no basis for finding that Mangenda’s detention between October 22 and October 31, 2014 was unlawful. After making this determination, the chamber deemed it unnecessary to consider Mangenda’s submissions with regard to compensation. Mangenda had requested that the compensation be deposited in a trust fund for the education of his children.

At the time, defense lawyer Christopher Gosnell argued that €3,000 per day of unlawful detention was a relatively modest sum given the “egregious circumstances” of Mangenda’s detention.

Of the €68.8 million Bemba is seeking, €42.4 million is for damage to his property. The previous claimants did not have this among the award grounds. Peter Haynes, who represents Bemba, says this is the first claim that is based substantially on losses consequent to the claimant’s arrest and detention, or caused by the court’s mistakes in managing an accused’s frozen assets. They also claim it is the first case in which any attempt has been made to examine the sort of award of compensation which is appropriate in a case of such prolonged detention.

Setting Award Amounts

The court does not have a precedent on awarding damages, but Rule 175 offers some guidance. It states that, in establishing the amount of any compensation, judges shall “take into consideration the consequences of the grave and manifest miscarriage of justice on the personal, family, social and professional situation” of the claimant.

In suggesting €3,000 per day of detention, Mangenda’s lawyers cited “general principles reflected in regional and national practice” and argued that compensation envisaged by Article 85(1) includes pecuniary and non-pecuniary damages. At the time, the prosecution countered that the requested amount was arbitrary and that reliance on specific domestic situations was unwarranted in international criminal cases.

Bemba’s lawyer acknowledged that there is no “exact science” for calculating compensation. The €12 million he claimed as compensation for the 10-year detention was derived from the sentence Trial Chamber VII judges handed Bemba for witness tampering. According to the defense, these judges equated a value of €100,000 to each month of Bemba’s imprisonment.

In the Ngudjolo case, the Office of the Prosecutor (OTP) slammed the amount sought by the claimant as an exorbitant sum merely based on his words. It said his claim rode on “his misunderstanding that his detention facing trial entitles him to compensation” and not on the basis of case record.

However, Mangenda’s lawyer, Christopher Gosnell, said the absence of ICC case law applying Article 85(1), including in the context of a facially unlawful detention, justifies recourse to general principles from regional and national practice on the rationale and the appropriate quantum of compensation for such a violation.

According to Gosnell, the primary remedy available to the European Court of Human Rights (ECtHR) is an award of compensation to those whose rights have been violated. Compensation falls into two categories – pecuniary damages for financial losses caused by the violation; and non-pecuniary damages, responding to moral damages (such as emotional and psychological harm) and compensation for the deprivation of the right itself.

Bemba lawyers have similarly argued that judges must consider established principles of damage assessment in cases of assault by detention, or false imprisonment cases. They added that the relevant “consequences” under Rule 175 would be all consequences contingent upon the miscarriage of justice, whether physical, pecuniary, or intangible.

What Failed Previous Requests

Mangenda’s request failed because, the judges said, the defense did not identify any prior decision finding that his detention unlawful or that there was a grave miscarriage of justice. However, the judges determined that, even without such a decision, a chamber could assess whether the detention was lawful. They ruled that continued detention was legal as there was no country to which Mangenda could immediately be released.

In Ngudjolo’s case, judges stated that the defense had failed to establish that had been unlawful arrest and detention, or a miscarriage of justice that resulted in a clear violation of the applicant’s fundamental rights and caused them serious harm. They rejected his arguments that joining his case to that of Germain Katanga, the confirmation of charges against him, and the acquittal decision demonstrated a miscarriage of justice.

Bemba is aiming to make a strong case for why there was a miscarriage of justice in his case. His lawyers have accused the trial chamber of making mistakes at every step as they were “determined to convict at all costs.” They cited the majority ruling acquitting Bemba, in which Appeals Chamber judges said Bemba’s conviction was replete with “obvious evidentiary problems,” including the trial chamber’s “selective and partial use of the available evidence” and findings based on “no shred of evidence” against Bemba.

Also as evidence that the trial was a miscarriage of justice, Bemba’s lawyers cite the prosecution’s “disregard for its investigations,” the prosecutor’s public disavowal of the acquittal, and her alleged deliberate campaign to undermine it.