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Defense Lawyers Make the Case for Bemba’s Compensation by the ICC

Defense lawyers for Jean-Pierre Bemba, the Congolese opposition leader who was acquitted last June, have made the case for his compensation by the International Criminal Court (ICC), citing injustices surrounding his 10-year detention and trial, as well as the destruction of assets that were seized at the court’s request.

Defense lawyer Peter Haynes told a May 9 hearing that the matter of Bemba’s compensation would not end even if ICC judges rejected his claim under the court’s rules. He said it would be “scandalous and contrary to the rules of natural justice” if ICC judges found that states which seized the assets—and not the court—are responsible for the losses.

Haynes said, however, that the defense was ready to submit to a court-ordered alternative dispute resolution mechanism, which could take the form of a formal independent mechanism, or of judges ordering parties to hold roundtable meetings at the ICC’s premises in order to discuss the claim.

Bemba, who was acquitted of war crimes and crimes against humanity purportedly committed in 2002-2003, is seeking €68.8 million (US$77.7 million) in compensation from the court. The figure comprises €12 million for the period of his detention, €10 million in aggravated damages, €4.2 million for his legal costs, and €42.4 million for damage to his property.

At the hearing, prosecution lawyers argued that Bemba’s compensation request falls manifestly short of the legal standard and should be dismissed. Echoing arguments they advanced in written submissions, prosecution lawyers said that while Bemba was free to seek legal redress wherever he wished, any requests under Article 85 of the court’s Rome Statute should be dismissed.

Article 85 states that the court can award compensation when there are conclusive facts of grave and manifest miscarriage of justice. The prosecution submitted that Bemba must first show that he has suffered an Article 85 violation and only then would any discussion on the amount of compensation arise.

For his part, Haynes raised various issues related to Bemba’s fair trial rights. He noted that appeals judges who overturned Bemba’s conviction pointed to manipulation of evidence and failure by the trial chamber to apply central principles such as the burden and standard of proof. The defense lawyer also contended that Bemba’s acquittal on appeal does not prevent a finding that there was a miscarriage of justice.

The defense also argued that Bemba’s claim for the destruction of his property does not depend upon a finding that there was a miscarriage of justice. “That claim could well succeed, or could well have succeeded, even if his trial had been perfectly regular or in the event his conviction had been upheld on appeal,” said Haynes. “Because it depends upon the actions of the court in failing to look after the property it seized.”

Bemba alleges that the court acted negligently in seizing and freezing his properties in Belgium, the Democratic Republic of Congo, and Portugal without properly managing them. Dutch valuations firm BFI Global calculated that the losses resulting from the alleged negligence by the ICC amounted to €42.4 million by December 31, 2018. The firm said this figure did not include losses related to real estate investments in Congo.

Haynes said Bemba was probably the first person whose assets were frozen by order of an international criminal tribunal or court. According to him, freezing orders breach the accused’s fundamental right to property and stop them from living their lives, so international courts have refrained from issuing them.

Noting that freezing orders are referred to as one of the law’s nuclear weapons, Haynes added that it was not by coincidence that despite having had many wealthy accused before them, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda never froze anyone’s assets, nor did the Special Court for Sierra Leone freeze the assets of “the fabulously wealthy Charles Taylor.”

Haynes argued that whoever asks for a freezing order has to indemnify the person whose assets are frozen. “The ICC as an institution with a legal personality which asked for those orders is in no different position that anybody else,” he added. The court’s Registry, in a filing made public this week, denies it had responsibility to manage Bemba’s seized or frozen assets, claiming this was the responsibility of states.

At the end of the hearing, Antoine Kesia-Mbe Mindua, the presiding judge of Pre-Trial Chamber II, referred to Bemba’s compensation claim as an “extremely complicated and difficult matter” but did not state what the next steps would be.

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