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ICC Registry Says it Would Be Premature for Judges to Involve States in Bemba’s Compensation Claim

The International Criminal Court’s (ICC) Registry has denied that the court bears responsibility for losses associated with the frozen assets of former defendant Jean-Pierre Bemba and has contested the formula that Dutch valuations firm BFI Global used to determine that the losses amount to €42.84 million.

Bemba, who was acquitted of war crimes and crimes against humanity in June 2018, is demanding €68.8 million (US$ 77.7 million) in compensation from the court. The bulk of the claim—€42.84 million—arises from the alleged mismanagement of his assets, which were seized or frozen in 1998 by the governments of Belgium, the Democratic Republic of Congo (DRC), and Portugal, at the behest of the ICC.

In the latest response to the claim, Marc Dubuisson, the director of the Registry’s Division of Judicial Services, contends that most of the assets had either deteriorated before Bemba’s arrest or were not frozen or seized on the court’s behalf. He says assets frozen or seized on the ICC’s behalf were properly managed in accordance with relevant national laws.

The Registry also submits that, because Bemba’s claim is based on Article 85(3) of the court’s Rome Statute, ICC judges should establish that he suffered a “grave and manifest miscarriage of justice” before he makes any compensation request and before the governments of Belgium, DRC, and Portugal are invited to submit observations. Rule 103 of the ICC’s Rules of Procedure and Evidence provides that at any stage of the proceedings, a chamber may invite or grant leave to a state, organization, or person to submit observation on any issue, if it considers it desirable for the proper determination of the case.

Last July, defense lawyer Peter Haynes asked Pre-Trial Chamber II judges to make the governments of Belgium, DRC, and Portugal party to the compensation proceedings. He argued that it had become clear that the position of the Registry and the prosecution was that responsibility for the economic loss arising out of the freezing orders issued by the court lies not with the ICC but with the three governments.

Furthermore, the defense has argued that it would be “scandalous and contrary to the rules of natural justice” if ICC judges found that the states that seized the assets—and not the court—are responsible for the losses Bemba suffered.

In its latest submission, the Registry contests Bemba’s claim regarding the total amount lost and argues that the court is not liable for damage to assets that are unrelated to the court requests for cooperation. The Registry then listed the various assets from Bemba’s claim that it claims are not related to ICC seizure requests.

The Registry proposes that, should the chamber determine that a claim is admissible, Bemba must substantiate that the claim relates to assets frozen at the court’s bidding. It also suggests the appointment of an independent expert to assess the value of the loss.

Bemba claims that some of his property was seized without a judicial order, including two villas, three motor vehicles, and a Boeing 727-100 plane in Portugal; as well as a river cruiser, six other aircraft, and several vehicles in DRC.

While Bemba’s compensation claim does not include losses related to his real estate investments in DRC, the defense argues that he has been deprived of access to his property.  In response, the Registry notes that, in its opinion, losses associated with those assets are due to the security situation in the central African country. It further argues that the court’s seizure order is unrelated to Bemba’s alleged lack of access to his DRC properties, such as houses that he says were taken over by squatters.

Dubuisson says the court never asked the Congolese government, nor the United Nations mission in DRC, to destroy the airplanes, as Bemba has claimed. Furthermore, Dubuisson denies that the court bears responsibility for the seizure of Bemba’s Boeing 727-100, as Portuguese authorities did not act on the court’s request to seize the plane. The Registry redacted from public filings the reasons for Portugal’s alleged non-compliance.

The defense says the ICC is not a special case when it comes to the management of assets that it asks states to seize and freeze. “Just like any individual, corporation, police authority, or state, it assumes responsibility for the preservation and management of the property concerned, and when it fails in that responsibility, it is liable to compensate the loser,” argues Haynes.

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