Former Congolese vice president Jean-Pierre Bemba is seeking €68.8 million (US$ 77.7 million) in compensation from the International Criminal Court (ICC) over his 10-year detention and alleged mismanagement of his assets by the court's Registry.
In a March 8, 2019 filing, Bemba asked Pre-Trial Chamber II judges to order that he should be awarded €12 million for the period of his detention, another €10 million in aggravated damages, €4.2 million for his legal costs, and €42.4 million for damage to his property.
Bemba said the compensation for his long detention should be used to provide reparations to people in the Central African Republic (CAR), where the crimes he was tried for were committed. This could amount to €22 million (US$ 24.8 million), comprised of the primary award of €12 million plus the €10 million in aggravated damages. The rest of the award, mostly related to destruction of his property, would go to him and his family.
Defense lawyer Peter Haynes said Bemba was ready to work with the legal representatives of victims and the Trust Fund for Victims "to provide meaningful assistance to those affected by conflict in that region [CAR] funded by any compensation he receives for his wrongful incarceration."
On June 8, 2018, the ICC Appeals Chamber overturned his 2016 conviction for war crimes and crimes against humanity. He had been in detention since March 2008. Haynes cited the long period of detention and the alleged abuse of Bemba's fair trial rights in seeking damages that are not related to the alleged damage to Bemba's property. Haynes said the purpose of the claim was "to attempt to repair some of the damage done to the man and his family by his arrest, detention and ancillary actions of the Court and certain States Parties."
In the filing to Pre-Trial Chamber X, Haynes cited Article 85(3) of the court's Rome Statute, which provides that "[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 ... according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason."
He also cited Rule 173(2), which requires that the request for compensation shall be submitted not later than six months from the date the person making the request was notified of the decision of the court concerning "the existence of a grave and manifest miscarriage of justice under article 85(3)."
Haynes acknowledged that there is no "exact science" for calculating compensation for loss of liberty and the related physical, psychiatric, and reputational damage. He nonetheless cited various examples of awards issued by various courts. Ultimately, the figure of €12 million the defense gave as the compensation sought for Bemba's long detention was derived from a ruling by Trial Chamber VII judges, who sentenced Bemba for tampering with witnesses. In that sentence, of one year's imprisonment and a fine of €300,000, the judges said if Bemba failed to pay the fine the sentence could be extended by one quarter or five years, whichever is shorter. The defense says since the shorter period of extension would be three months, this indicates that the judges equated a value of €100,000 to each month of Bemba's imprisonment.
Besides the cost of Bemba's legal fees, other figures cited by Bemba's lawyers are derived from calculations by Dutch valuations firm BFI Global. The firm estimated [PDF] Bemba's losses to have reached €42.4 million by December 31, 2018 but added that this did not include losses related to real estate investments in Congo.
The defense alleges that the court acted negligently in seizing and freezing Bemba's properties without properly managing them. It contends that Bemba would have had a valid claim even if he had been convicted in the criminal trial.
Following an ICC request, in May 2008 Bemba's bank accounts in Congo, Portugal, Belgium, and an unnamed country were frozen. Bank accounts in Belgium and Portugal in his wife's name were frozen too. A family home in Brussels, various properties and parcels of land in Congo, and a villa and a boat in Portugal were also seized.
The defense says additional property was seized, apparently without judicial order. It included two villas, three motor vehicles, and a Boeing 727-100 aircraft at Faro airport in Portugal; a river cruiser, six aircraft, and several vehicles in Congo.
According to the defense, at the time of Bemba's arrest, his Portuguese bank was settling invoices for the Boeing's monthly parking and maintenance fee of €1,527. Once the account was frozen, the bank was unable to pay, and when Bemba requested in December 2010 to be given back the aircraft's keys and documentation to lease it out, the ICC Registry responded in May 2011 that the Office of the Prosecutor (OTP) "had been unable to identify the key of the plane and thus it could not be handed over."
Haynes said the OTP returned the keys in September 2018 following Bemba's acquittal. By then, the plane had incurred a debt of €981,954 and is "now scrap." Haynes said if the prosecution had handed over the keys earlier, the plane could have been moved to a location with lower or no fees, or it could have been sold to a buyer who offered €1 million.
The defense argues that it was not reasonable for a case involving a single accused, with one form of liability, and events spanning a five-month period, to take a decade to conclude. After Bemba initially appeared before an ICC judge, 192 days passed before the confirmation of charges hearing. After charges were confirmed, 525 days passed before his trial commenced, notes the defense. The trial lasted four years, and he was convicted 16 months later. A further 659 days then passed before the hearing of his appeal, on which judgement was delivered 213 days later.
Bemba's lawyers contend that there can be no possible justification for a case taking this long. While it often argued that some cases at International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) also took a decade, Bemba's defense counters that "the length of trials at the ICTY and ICTR is a stain on their legacy from which they will perhaps never recover, and the ICC should be doing better."
Still, Bemba's lawyers cited the ICTY case against Vujadin Popović and six others, which it said had seven times the volume of documentary evidence and at least four times more testimony, yet the trial was conducted in just over three years, with verdicts rendered nine months thereafter.
The defense contends that the ICC has no immunity from claims under private law and that it can be sued for those losses in domestic jurisdictions in Portugal, Belgium, or Congo. Defense lawyers said an alternative to offering Bemba compensation of €68.8 million, Bemba should be awarded a sum not less than €42.4 million for damage to his property under the ICC's inherent power to make an award of financial compensation. Alternatively, they said, his claim for financial loss for destruction and damage to his property should be submitted to binding arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL).