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ICC Prosecutor and Registrar Oppose Bemba’s US$ 77.7 Million Compensation Claim

The International Criminal Court (ICC) prosecutor and registrar have asked judges to dismiss former Congolese Vice President Jean-Pierre Bemba’s claim for €68.8 million (US$ 77.7 million) in compensation from the court over his 10-year detention and alleged mismanagement of his assets by the court’s Registry.

In a filing made public yesterday, prosecutor Fatou Bensouda said Bemba failed to show that a grave and manifest miscarriage of justice occurred in his trial, hence his request for compensation and damages should be dismissed.

Similarly, Marc Dubuisson, who heads the Division of Judicial Services in the Registry, opposed the claim, describing it as ill founded in law and in fact. He argued that the duty to manage assets seized at the behest of the ICC belongs to the states that seize those assets, and not to the court itself. Dubuisson added that the court’s legal framework under Part 9 of the Rome Statute does not support such a claim. Part 9 governs cooperation between the court and states, including during the ICC’s investigation and prosecution of crimes.

“In the same way that the court is fully dependent on states to arrest suspects on their territory in respect of their domestic laws and procedures, it is also fully dependent on states to execute, under Part 9 of the Statute, cooperation requests concerning assets,” said Dubuisson. According to him, this applies to both the management of frozen or seized assets and “potential compensation requests in case of proven mismanagement of these assets.”

The prosecutor concurred with the Registry, pointing out that there is a demarcation of responsibility between the court and states parties, since it is the states that are equipped with the necessary laws, regulations, and mechanisms to carry out the freezing and seizure of assets.

In a March 8, 2019 filing, Bemba asked Pre-Trial Chamber II judges to order that he be awarded €12 million for the period of his detention, another €10 million in aggravated damages, €4.2 million for his legal costs, and €42.4 million for damage to his property. The property was seized in 2008 following an ICC request to the governments of Belgium, the Democratic Republic of Congo, and Portugal.

Bemba said the compensation for his long detention should be used to provide reparations to people in the Central African Republic, where the crimes he was tried for were committed. This could amount to €22 million, comprised of the primary award of €12 million plus the €10 million in aggravated damages. The rest of the award, mostly related to destruction of his property, would go to him and his family.

On May 9, 2019, the court shall hold a hearing where various parties will present oral arguments 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.

The two previous claims for compensation at the ICC failed. Former Congolese militia leader Mathieu Ngudjolo filed his compensation request after appeal 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.

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.

However, 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.

Article 85(3) of the court’s Rome Statute provides 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.”

Besides invoking that article, Bemba’s lawyers also cited Rule 173(2), which 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 “the existence of a grave and manifest miscarriage of justice under article 85(3).”

Bemba has claimed a grave and manifest miscarriage of justice and also alleged that the court, notably the Registry, acted negligently in seizing and freezing his properties and then failing to properly manage them.

However, the prosecutor has countered that Bemba is using his compensation request to repeat several arguments related to the fairness of the trial and alleged miscarriage of justice, which were disposed of by the Trial Chamber and the Appeals Chamber in the course of the proceedings against him. Bensouda said Bemba’s acquittal “does not give him a carte-blanche to raise the same issues again in these proceedings” as this would turn the compensation proceedings into a second appeal.

She said Bemba had failed to show that there had been a grave and manifest miscarriage of justice in his trial, and that he had consequently failed to justify why he should compensated.

Furthermore, the prosecutor stated that Bemba’s claim regarding purported damage to his assets seized or frozen by the court is flawed. She argued that, to succeed, Bemba must first show that he has suffered an article 85 violation and only then would any discussion on the amount of compensation arise.

Bensouda also noted that estimating the financial value of assets to properly assess whether Bemba’s claims are accurate is a complex exercise requiring special financial expertise. According to her, although Bemba has provided the court with information on this, “this is not definitive and could well be self-serving.” As such, she said, the court would need to engage its own financial expertise should it need to establish this value.

The oral hearing on the compensation claim will start at 9:30 a.m. local time in The Hague.

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