JURIST Guest Columnist David M. Crane of Justice Consultancy International discusses the possibility of reparations for Jean Pierre Bemba Gombo's incarceration...
Jean-Pierre Bemba Gombo (Bemba) is the leader of the Movement for the Liberation of Congo (MLC) and was the commander-in-chief of its military forces during the Central African Bush War from 2003-2004, during which the MLC was accused of committing war crimes, as well as, crimes against humanity.
Bemba was arrested on charges of war crimes and crimes against humanity for his role as the leader of the MLC near Brussels in May 2008 and was handed over to the International Criminal Court (ICC) on July 3, 2008. Bemba was held by the ICC for over two years before his trial began in November 2010, throughout the duration of his trial which lasted until 2014, and still after the conclusion of his trial, until his convictions on March 21, 2016.
The ICC sentenced Bemba to 18 years detention for war crimes and crimes against humanity convictions, plus an additional year and a €290,000 fine for witness tampering.
Bemba appealed his convictions in 2016, citing procedural and legal errors in the lower court judge’s ruling, which Bemba’s counsel said should have resulted in a mistrial. The ICC chamber to which Bemba appealed found on June 8, 2018 that the trial chamber had ignored significant testimonial evidence proving that Bemba had a limited ability to investigate and punish war crimes in the Central African Republic during and after the violence in 2003 and 2004. This conclusion lead to Bemba’s acquittal.
Bemba submitted a request for compensation to the ICC on March 8, 2019. The ICC Prosecutor and Registrar asked the judges to dismiss this claim, but the Pre-Trial Chamber II judges presiding over the claim denied this request.
Bemba’s claim totaled €68.8 million, including: €12 million for the period of his alleged unlawful incarceration, €10 million in aggravated damages, €4.2 million in legal fees, with the remaining €42.4 million being for property damage.
Bemba’s request for property damage compensation stems from those losses consequent to Bemba’s arrest and detention as well as those losses caused by the ICC’s mistakes in managing Bemba’s frozen assets, as the assets seized by the ICC upon Bemba’s conviction were allowed to rot.
The provisions of the law are that Article 85 of the ICC’s Rome Statute governs compensation claims by persons who have been arrested pursuant to the ICC’s jurisdiction or convicted by the ICC. The governing clause provides two primary bases for bringing claims for compensation: the first is found in Article 85(1) while the second is laid out in Article 85(3). Article 85(1) of the Rome Statute states that “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Article 85(3) is vaguer and states 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.”
Claims for compensation must follow the ICC’s Rules of Evidence and Procedure, specifically Rule 173(2), which requires that a request for compensation be submitted to the court no later than six months from the date the person making the request was notified of the decision of the court concerning unlawful arrest or detention; reversal of a conviction; or existence of a grave and manifest miscarriage of justice.
Any party seeking compensation on such grounds must submit a written request containing the grounds for and the amount of compensation being sought to the ICC’s Presidency. The ICC then designates a three-judge chamber to consider the request. Rule 174 of the Rules of Procedure and Evidence provides that judges handling such requests may hold a hearing or determine the matter based on the request along with any written observations by the prosecutor and the party who filed the request.
In cases in which damages are awarded, judges shall take into consideration “the consequences of the grave and manifest miscarriage of justice on the personal, family, and social professional situation of the claimant.” However, it has been acknowledged that there is no exact formula for calculating such damages.
The ICC does not have precedent in awarding damages to those seeking compensation under the court’s jurisdiction, and there does not seem to be a set test to determine whether a party seeking compensation from the ICC will receive such damages – at this point, it is purely discretionary. However, it does seem as if the ICC tends to look to whether the claim for damages is viable under Article 85(1) or 85(3) of the Rome Statute and proper under Rule 173(2) before considering the amount of compensation requested.
The two previous requests for compensation failed: the first came from former Congolese militia leader Mathieu Ngudjolo, while the second was submitted by Jean-Jaques Mangenda Kabongo, Bemba’s former case manager.
Ngudjolo brought his 2015 claim under both Articles 85(1) and 85(3) after his 2012 acquittal of 2008 war crimes and crimes against humanity convictions. As the court acquitted Ngudjolo due to a lack of sufficient evidence from the prosecution, Ngudjolo sought compensation under the theory that he was unlawfully arrested and detained, and that the proceedings in his case resulted in a grave miscarriage of justice. Ngudjolo asked the court for a total of €906,346, which included €80 per each day of his 1,781 day-long prison stay; €360,000 in moral damages; €124,866 for childcare expenses; €9,000 for a vehicle; and €270,000 for a house.
The court rejected Ngudjolo’s request, stating that the defense lawyers in the case did not show that Ngudjolo had been unlawfully arrested or detained, and also failed to establish that Ngudjolo suffered a grave and manifest miscarriage of justice that resulted in a clear violation of fundamental rights and caused serious harm. This lead to the finding that there were no grounds for the chamber to exercise its discretion to award compensation to Ngudjolo.
Jean-Jacques Mangenda-Kabongo brought his claim for compensation to the ICC in April 2015. Mangenda submitted his request for compensation when he was kept in ICC detention for nine days after the trial judge in his corrupting witnesses case ordered him released pending his trial. Mangenda requested €3,000 from the ICC for each day he was allegedly unlawfully detained, totaling €27,000.
The trial chamber assigned to Mangenda’s request rejected the submission on February 26, 2016, stating that there was no basis for finding that Mangenda’s nine extra days of detention were unlawful, and thus did not consider the damages he requested.
In conclusion, it is unclear whether Bemba’s claim for damages from the ICC will succeed, due to the lack of case law surrounding the case and the ambiguity in the language of the applicable articles of the Rome Statute. Bemba’s extended detention, as well as substantial loss in assets due to the ICC’s alleged negligence, present compelling arguments for the ICC to consider.
However, the judge in Bemba’s appellate hearing indicated that she believed the trial chamber erred in many evidentiary areas during Bemba’s trial and the conviction that resulted in extended detention and many collateral consequences. These things taken together may result in at least some of Bemba’s claim being granted.
David M. Crane is a Founding Chief Prosecutor of the International War Crimes Tribunal in West Africa called the Special Court for Sierra Leone; Principal, Justice Consultancy International. Nicholas Carter assisted in the drafting of this note.
Suggested citation: David M. Crane, Jean-Pierre Bemba’s Request for Compensation for Damages from the International Criminal Court, JURIST – Professional Commentary, June 9, 2019, https://www.jurist.org/commentary/2019/06/david-crane-jean-pierre-bembas/