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.

Source of original article: International Justice Monitor (www.ijmonitor.org).
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