Defense lawyers have asked judges at the International Criminal Court (ICC) to make the governments of Belgium, the Democratic Republic of Congo (DRC), and Portugal party to the compensation proceedings in which Jean-Pierre Bemba is demanding €68.8 million (US$ 77.7 million) in compensation from the court.

Bemba, who was acquitted last June of war crimes and crimes against humanity, filed a compensation claim three months ago over his 10-year detention and alleged mismanagement of his assets by the court’s Registry. The matter is pending before Pre-Trial Chamber II. The chamber is composed of Judge Antoine Kesia-Mbe Mindua, Judge Tomoko Akane, and Judge Rosario Salvatore Aitala.

Defense lawyer Peter Haynes contends in June 20, 2019 submissions that it is now clear that the position of the court’s Registry and the prosecution is that responsibility for the economic loss arising out of the freezing orders issued by the court lies not with the ICC, but with Belgium, Portugal, and DRC. This is why the defense wants these governments to be made party the proceedings.

Should the countries not be made party to the proceedings, the defense suggests that the chamber invites them to submit written observations on Bemba’s claim and on submissions by the prosecution and the Registry about theliability for damages to Bemba’s assets. This is because “to decide on questions of liability for the economic loss suffered in the absence of submissions from the States Parties now being blamed by the ICC, runs counter to the rules of natural justice.”

In its response to the compensation claim, the Registry argued that these states were “aware of their obligation to manage the assets they were requested to freeze or seize on behalf of the court,” and suggested that judges could ask the governments to make submissions on “the alleged wrongdoing in managing Mr. Bemba’s assets.”

Bemba alleges that the court, particularly the Registry, retained responsibility over the assets once they were seized or frozen. However, the Registry says that responsibility rested with states that implemented the freezing orders.

In the claim filed on March 8, 2019, Bemba asked 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. These computations do not include losses related to real estate investments in Congo. Last week, his lawyers said the economic loss had risen to €42.84 million, and they asked judges for permission to file updated financial reports.

Haynes said even as of June 4, 2019, Bemba’s houses in Portugal remained frozen and that he had been refused access to his vehicles in the country, which are now “substantially destroyed.” He added that Bemba’s wife cannot access her personal property in Belgium, and in DRC, he cannot enter his houses even to survey the extent of their destruction by the squatters who live in them.

The prosecution has argued that the ongoing compensation proceedings should be limited to determining if the Article 85 criteria of the court’s Rome Statute are met. This article provides that where there is a grave and manifest miscarriage of justice, judges can award compensation to a person who has been released from detention following a final decision of acquittal or a termination of proceedings. The prosecution argues that only after it is determined that Bemba suffered an Article 85 violation should he seek compensation.

However, Haynes has countered that a finding of a grave and manifest miscarriage of justice under Article 85 is not a prerequisite to determining that Bemba is entitled to compensation for loss arising from seizure of his property. According to him, since the court acted negligently in seizing and freezing Bemba’s property but failed to properly manage or account for it, this liability arises irrespective of any consideration of a miscarriage of justice. This, he says, means Bemba would have had a valid claim even if he had been convicted, as his claim for economic losses is based on his fundamental human right to property and a private law claim alleging tortious behavior by the ICC.

Nonetheless, the defense also advances arguments to support its contention that there was a miscarriage of justice that justifies a compensation award. The defense cites procedural errors during the trial phase, an erroneous approach to victim participation “that upset the balance of the proceedings,” and a trial chamber “that sealed itself off from appellate review,” resulting in a trial judgement that gave rise to “deep concerns on the part of Appeals Chamber judges as to whether the Trial Chamber had applied the correct standard of proof, or adhered to the principle that the accused is entitled to the benefit of the doubt.”