In this article, David Crane discusses the recent claim for compensation in damages from the ICC in the Bemba case.
Article 85 of the ICC’s Rome Statute governs compensation claims by persons who have been arrested or convicted by the ICC.
There are two main bases under the Rome Statute for bringing claims for compensation: The first is Article 85(1) which provides that “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” The second is Article 85(3) and broader in scope. It states, “[i]n 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 . . . to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.”
The request for damages by Jean-Pierre Bemba following his acquittal on appeal in 2018 differs from previous (failed) appeals for compensation under Article 85(1) and (3) as it includes a claim for compensation for deterioration of assets frozen by Order of the ICC following his arrest. Mr Bemba alleges that the ICC was under a duty to manage his assets while they were frozen and failed to do so, leading to a significant deterioration in their value.
This claim, coupled with the lack of precedent and well-defined rules as to the extent of the extent of the ICC’s obligation to ensure the proper management of assets frozen upon its Order, raises a fresh and undoubtedly unwelcome new issue for the Court to grapple with. Whether such a claim might be successful remains to be seen but it is clear that whatever the decision, it will be a significant one for the future of the ICC.
David Crane article: https://www.jurist.org/commentary/2019/06/david-crane-jean-pierre-bembas/?fbclid=IwAR3378xEryUAZCqB0GkOTT9Gf70QJyPZs0n8_vsaQ0FKqICxOB_6eBJ5HgA
ICC Registry Response to Claim, dated 6 May 2019: https://www.icc-cpi.int/CourtRecords/CR2019_02619.PDF
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