These are just a few of the descriptions that Peter Haynes QC, Jean-Pierre Bemba’s Lead Counsel before the International Criminal Court (ICC), prefers to attach to The Hague-based court’s handling of his client’s frozen assets. The ICC Appeals Chamber in June 2018 acquitted Bemba of charges of murder, rape and pillaging committed by his private army in the neighbouring Central African Republic (CAR). This week it emerged that Haynes had demanded 68 million euros in compensation from the ICC for both allowing Bemba’s assets to “devalue, dissipate or simply rot” while under the care of the ICC Registry and damages for being incarcerated for so long.
Despite various experts poo-pooing the idea, not least because the ICC isn’t exactly flush with cash, Haynes thinks the suit is a slam dunk if the matter is granted a dispassionate hearing:
“The destruction of Bemba’s assets is something on which he has a strong claim because the people who seized them and froze them just didn’t look after them. You have to take care of frozen assets under any system in the world. You can’t just freeze people’s assets and let them rot,” he contends.
Haynes, however, told Justice Hub that Bemba was prepared to seek compensation at various other forums if the Court threw out his claim. We began by asking him the question that’s on everybody’s mind:
Justice Hub: 68 million euros is quite a sum. What’s the justification?
Peter Haynes: I think what makes this different is really two things. One is because the substantial part of the claim is not to do with the destruction of his life by imprisonment, it’s to do with the destruction of his property. And in so far as he seeks to claim any compensation for losing 10 years of his life, he proposes to give anything that he gets by way of compensation for that to victims in the Central African Republic (CAR).
That’s his proposal. That if he is awarded compensation for being locked up for 10 years, he wants to work with the Trust Fund for Victims (TFV) and the legal representatives of victims and any agency that can make it work in the Central African Republic to provide meaningful reparations to victims of this conflict. His motivation for that is that he was deeply moved by the ICC Judge president Chile Eboe-Osuji’s separate opinion in acquitting him in which he invited him to make good use of his new lease on life by providing compensation to these people regardless of his legal responsibility and trying to work as an ambassador for peace.
That’s one of the things that I think should headline this announcement. The other thing that really comes out is the woeful performance of the ICC in the management of frozen assets which is cause for real concern not just to Mr Bemba but the victims in this case and every other case that follows it.
Mr Bemba’s assets over a 10-year period were quite simply allowed to rot. These were aeroplanes, boats and real estate. Had he been convicted, the Trust Fund for Victims would have gone looking for funds with which to effect reparations and they would have found nothing but debt. They would have inherited a load of liabilities. It’s truly shocking that the Registry of the International Criminal Court, in particular, has mismanaged this process in this way.
It’s no secret that there are internal reports we refer to in our filing in which they acknowledged that they were doing this wrong. They acknowledged that they had grossly insufficient resources. They acknowledged that they had a lack of competence. They acknowledge that they didn’t have the skill. Yet they still carried on blindly storing these assets until they rotted away. I think that’s something that’s going have to be looked at very carefully by people in the ICC to see whether it’s a process they should ever use in the future or whether they need to review completely their practices in that regard.
Justice Hub: Considering how cash-strapped all kinds of elements of the ICC are at the moment, including the Trust Fund for Victims, doesn’t that make your claim very much less likely to succeed?
Peter Haynes: That’s why Article 85 of the Rome Statute [which provides for “Compensation to an arrested or convicted person”] exists. When the ICC was set up, it was set up knowing that it might have a liability to pay out sums to people who were wrongly convicted or otherwise the victims of a miscarriage of justice. People seem to assume this money will come from the ICC but if they haven’t got insurance for this then frankly that’s shockingly negligent.
You can’t have an organisation which, as part of its Constitution, has the liability to pay out sums to people who might be wrongly convicted and not seek to get insurance coverage for it. I mean, seriously?
Justice Hub: Some might say that as his lawyers your main interest is in seeing yourselves get paid. What do you say to that?
Peter Haynes: Well, I don’t work for free. I think you would be surprised at how little we have done this for. But I am acting on my client’s instructions and doing what I think is right. You can’t just destroy people’s assets like this with complete impunity. Freezing people’s assets is a really serious thing to do. In any domestic jurisdiction, you would have to give an undertaking in damages before you even get the freezing orders. To go about this process in such a cavalier and reckless way is not something which, however much I get paid, I can leave unquestioned as a lawyer.
Justice Hub: Some legal experts have already weighed in on your submission. They argue that because the ICC Appeals Chamber found that neither the judges of the Trial Chamber nor the prosecutor behaved maliciously, that it is unlikely that you will get damages. Do you think your arguments are strong enough?
Peter Haynes: This is a rather more complex question than that. The prerequisite for success for the claim under Article 85, which could cover the whole claim for damages, is showing that was a grave and manifest miscarriage of justice. It is at least arguable, and indeed a lot of people do believe, that if an Appeals Chamber says a man was wrongly convicted, then that’s a grave and manifest miscarriage of justice. You don’t need to show anything else.
The Appeals Chamber, in the main case, only ruled upon one and one-quarter of the 7 grounds of appeal. In those circumstances, I don’t think you can even begin to say that the remainder of our complaints about the way in which this trial was conducted are a settled issue the Trial Chamber. They are not. They are as unsettled as ever. The Appeals Chamber just decided that they didn’t need to determine them.
If you look at those complaints like…
- The way in which the prosecution case was changed from Article 25 to Article 28 liability
- The way in which important evidence was jettisoned in order to shoehorn the form of liability around the evidence
- The way in which the judges behaved towards the defence case.
- The way in which the Trial Chamber judges applied strange rules of procedure and evidence.
- The way in which the Trial Chamber judges entertained the Article 70 case for five months when they shouldn’t have held it within their jurisdiction for more than two or three days…
You will see that there were lots of things wrong with this trial which in addition to the Appeals Chamber being appalled at the quality of the judgment suggests that the whole process is just a parody of justice. So yes, we have good arguments for showing that there was a miscarriage of justice.
But in relation to the destruction of his assets, we don’t even need to show that. The destruction of his assets is an action in negligence or breach of trust. It’s not necessary to show that there is a miscarriage of justice in order to open up that form of liability.
I am supremely confident. Maybe we will not necessarily succeed before the ICC. Maybe they’ll say “we don’t have jurisdiction to deal with this” and we’ll have to go off to some other forum. The destruction of Bemba’s assets is something on which he has a strong claim because the people who seized them and froze them just didn’t look after them. You have to take care of frozen assets under any system in the world. You can’t just freeze people’s assets and let them rot.