As delegates meet in New York for the ongoing 22nd session of the Assembly of States Parties (ASP) to the Rome Statute, the treaty that established the International Criminal Court (ICC), one matter that should be on their agenda is a clear policy on the frozen or seized assets of persons under investigation or prosecution by the court.
The Statute gives the ICC the power to request states to identify, trace, freeze and seize the property and assets of individuals who are subjects of arrest warrants or summonses for the purpose of forfeiture and ultimately for the benefit of the victims.
The court used this provision on Jean-Pierre Bemba Gombo, the former vice-president of the Democratic Republic of the Congo (DRC), to get his assets, including bank accounts, companies, a Boeing 747, and real estate worth millions of euros, frozen in Portugal, DRC, Belgium, and France.
However, the court does not seem to have established clear and consistent procedures on how to reverse this action and release the assets in the event of an acquittal, or how to deal with the costs and consequences of prolonged asset freezes. Although Bemba was acquitted by the ICC Appeals Chamber in 2018, after spending more than 10 years in detention in The Hague, he has yet to make headway in recovering his assets except those in his home country.
His lawyer, Peter Haynes, expressed concern that although the ASP, which is the oversight and legislative body of the ICC, has a role in ensuring cooperation and assistance from states parties and other actors concerning the investigations, prosecutions, and enforcement of sentences by the court, the system seems to have a blind spot when it comes to respecting the rights of those who are acquitted by the court.
“Nobody managed the exercise or even monitored it, and nobody gave a thought to the fact that Bemba might be acquitted or that the process might take a decade. The approach to freezing his assets was punitive rather than having any regard for the potential victims in the case – the prosecution and the court merely wanted to deprive him of his wealth. That approach has been even more apparent since his acquittal,” Haynes said in a statement emailed to Journalists For Justice (JFJ) in response to our questions on the developments in his client’s case.
The case of Bemba and his lost assets is a long story. The ICC-instigated orders left him unable to cover his trial expenses, prompting Trial Chamber III to ordered the ICC Registry to arrange a monthly loan of 30,150 euros for his defence.
After his release, the loan agreement was terminated and the ICC demanded the repayment of an outstanding sum of approximately 1.9 million euros after his bank account in Cape Verde was emptied of some 2.2 million euros, which was credited to his loan account. Bemba sought to have his assets released to enable him to pay the loan, arguing that the basis for the order ceased after his acquittal.
However, the ICC divested itself of jurisdiction over the matter, stating that it has no control over domestic orders and that he would have to seek the freeing of his assets in the various countries they were situated. It also argued that Bemba had enough information to do that without any assistance or communication between the ICC’s Registry and the concerned states. Additionally, it observed that there was nothing to stop states from continuing to cooperate with the ICC voluntarily by maintaining the freezing orders.
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Daley Birkett, a researcher and a senior lecturer at Macquarie University in Sydney, Australia, in a journal article on the ICC’s management of frozen assets, says the legal framework applicable to the management of frozen assets under the ICC Statute system, has gaps and that is why Bemba has not regained his assets years after he started the efforts.
Article 85 of the Rome Statute provides for reparations to persons who have been arrested or convicted by the court because of serious violations of their rights. But when Bemba filed his claim for damages arising from the loss, destruction, or devaluation of his property, totalling 42.4 million euros, Pre-Trial Chamber II, in May 2020, denied the request on grounds that Bemba still owed the court more than 300,000 euros and that it had no jurisdiction since the primary responsibility of the matter now lies with the states parties concerned.
All the parties to the suit agree that Bemba’s debt to the ICC is a matter of contract and, therefore, governed by private law in domestic courts, rather like his quest to have his assets unfrozen. In the case of his contract with the ICC, Haynes maintains that it would be governed by Dutch law, specifically the statute of limitations, since the agreement was signed in the Netherlands.
Under this law, if the ICC does not bring any legal action for the repayment of the money owed, the claims under the contract would expire after five years. In Bemba’s case, the time has elapsed, but in August 2023, almost three years after it had last communicated with him, the Registry wrote again, asking him to make proposals to repay the money and threatening to “take all necessary steps to recover the debt, including “to involve the Presidency”.
In his response, Bemba pointed out that the alleged debt was contractual and a matter of domestic civil law and that it was out of time under the relevant legal system. He also held that he had a valid contra-claim, which extinguished the debt, and that the Presidency had no jurisdiction over a contractual dispute.
In October 2021, the Portuguese Tribunal Central de Instruçāo Criminal released Bemba’s assets in the country. Before this, the court had received a delegation from the ICC Registry which had tried to persuade it to continue the blockade, to value and even seize Bemba’s assets to settle his debt to the court. However, the court made it plain that it had no authority to freeze the property based on an alleged contractual debt unless the Registry brought a successful civil claim against Bemba.
However, the decision was not communicated to Bemba’s lawyers until January 2023’ leading Haynes to cry foul about the apparent conspiracy against his client.
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“The obvious inference here is that the Portuguese authorities were giving the ICC ample time to sue Bemba for the contractual debt. Similarly, the ICC did not assist the Portuguese in identifying the assets which it had asked to be frozen, leaving the tribunal to wade back through all the ‘letters rogatory’ it had received to do so,” he said.
The Portuguese position raises serious questions about the legality of the actions of the bank and the authorities in Cape Verde in 2014, when Bemba’s bank account was emptied and the funds transferred to the ICC. One of the questions is that if it is not lawful for a state to continue to freeze property because of an alleged contractual debt to the ICC, shouldn’t it follow that seizing and transferring monies for that reason is illegal.
No mention was made of Bemba’s aeroplane, which was impounded by the prosecution and the Portuguese aviation and tax authorities and is still parked, unmaintained, at Faro Airport in Portugal.
In Belgium, the authorities continue to block Bemba’s property, which includes his principal family home. Although the relevant law in the country permits the freezing of assets to repay funds advanced by way of legal aid, the former DRC vice-president has argued that he was not legally aided and the so-called contractual debt is no longer sustainable since the ICC Registry is out of time.
These actions raise serious concerns about the court’s powers and responsibilities, further highlighting the conceptual and practical complexities of some of its provisions. They are part of what Haynes at one stage describes as “a lack of strategic approach” in the freezing of his client’s assets and which have the effect of leaving the affected persons in a legal limbo, unable to recover their assets even after being cleared by the court.
JFJ saw the need for a thorough interrogation of the factual and legal circumstances raised by Bemba’s case and asked the ICC to respond to the questions raised, but the email request to the court’s spokesperson for a comment on the developments in the case went unanswered.
Haynes sees a bleak path ahead for his client’s case and cooperation from the ICC, and was quite harsh in his assessment.
“We do not expect any reasonable approach to the Bemba case going forward. There are far too many bruised egos. The ICC will continue to treat him with contempt and spite and deny any failings on its part. However, the case has provided many lessons to learn,” he told JFJ.
It would be apt for the ASP this year to encourage the ICC, in consultation with the states parties and other stakeholders, to develop clear and comprehensive national and international guidelines, procedures, and regulations on the management of frozen assets, to match the aspirations of the Rome Statute and international human rights law.