By Thomas Verfuss
It is a good thing, of course, that the founding mothers and fathers put
provisions in the Rome Statute that allow the International Criminal Court (ICC)
to request states to freeze assets of its suspects. This allows for those
assets to be used to compensate victims in case of a final conviction.
But it is not the first time that those who establish a new
international criminal justice system seem to have forgotten that sometimes people
are acquitted, as some defence lawyers quip not without some bitterness. This became
apparent at the International Criminal Tribunal for Rwanda (ICTR). Some of the
people ICTR acquitted years ago have been lingering in legal limbo. They are in
“safe houses” in Arusha, no longer in detention, but also not really free to go.
They have no place to go.
A similar inconsistency in the system is now apparent at the ICC. When Jean-Pierre
Bemba, a former Congolese vice-president, was arrested in 2008 on charges of
war crimes allegedly committed by his private militia in neighbouring Central
African Republic (CAR), the ICC asked Belgium, Portugal and Congo to freeze his
assets. These included airplanes, boats and villas. These would have been used to
pay reparations to the CAR victims in case of a (final) conviction. But instead
of getting compensation, the victims would have ‘inherited a debt’, the defence
claimed in a
March 2019 statement based on an analysis by experts.
Almost two and a half years after his acquittal by the ICC Appeals Chamber
in June 2018, Bemba still hasn’t got his assets back and they have been left to
further deteriorate. His lawyers wrote in a November
3 filing to the ICC Presidency:
“The urgency of the situation is now aggravated by the evidence in Mr.
Bemba’s possession of the illegal occupation of properties belonging to him.
Not only is he still unable to access these properties and assess the damage
that has been caused by over a decade of neglect, but it now appears that
people are living in them. It could never have been the Court’s intention in
issuing Requests for Assistance in 2008 that this would be the result; that the
frozen property would devalue to the tune of 40 million euros, and would then
be corruptly mismanaged following Mr. Bemba’s acquittal. Freezing orders are
intended to preserve assets for future determination of liability. […] The
situation is scandalous, and the Court must act.”
The problem is: there was a clear freezing procedure in 2008 that nobody
seems to know how to undo following Bemba’s acquittal. As the defence pointed
out in an email to JFJ: “Responsibility is being shifted in a constant circle;
the Registry says the Chamber needs to issue an order; the Chamber says the
States need to act [or that is has no jurisdiction – JFJ]; the States won’t act
without an order from a Chamber.”
After turning around in circles for years between the Registry, judges
and states the defence has now asked for the help of the ICC Presidency.
Specifically, the defence has asked the ICC Presidency to designate a pre-trial
chamber to send requests to “the relevant authorities of the States to
discharge all remaining freezing, protective or charging orders over Mr.
Bemba’s assets and properties that are still in place.”
The defence has also asked for a pre-trial chamber to be assigned to, “adjudicate
a claim for damages resulting from the freezing of Mr. Bemba’s assets, and
their consequent deterioration, depreciation and destruction.”