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Pre-trial ‘Protective Measures for the Purpose of Forfeiture’ at the International Criminal Court: Safeguarding and balancing competing rights and interests

  • Daley J. Birkett (a1)

Abstract

The International Criminal Court is empowered by its constituent instrument to request its states parties to identify, trace, freeze, and seize assets ‘after a warrant of arrest or a summons has been issued … having due regard to the strength of the evidence and the rights of the parties concerned’. This article critically examines the approach adopted by the Court to requesting such protective measures at the pre-trial phase, reflecting on how the rights and interests of the primary stakeholders implicated by this process: (i) accused persons, (ii) the Prosecutor, (iii) victims, and (iv) bona fide third parties, are safeguarded and balanced.

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This article is based on a paper given by the author at the 6th Biennial Conference of the Asian Society of International Law, Junior Scholars’ Workshop, held at Yonsei University in Seoul, Republic of Korea, on 24–25 August 2017. The author is grateful to Upendra Acharya, Buhm-Suk Baek and Ethan Hee-Seok Shin for critical discussion of the paper. The author also wishes to thank Nina Jørgensen, Gregory Gordon, Göran Sluiter, Denis Abels and the two anonymous peer reviewers for their feedback on earlier drafts of this article.

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1 2002 Rome Statute of the International Criminal Court, 2187 UNTS 90, Art. 93(1)(k).

2 Ibid., at Art. 57(3)(e).

3 Ibid.

4 Control Council Law No. 10, 3 Official Gazette Control Council for Germany 50-5, at art. III(1): ‘Each occupying authority, within its Zone of Occupation, (a) shall have the right to cause persons within such Zone suspected of having committed a crime … to be arrested and shall take under control the property, real and personal, owned or controlled by the said persons, pending decisions as to its eventual disposition.’

5 Special Court for Sierra Leone, Rules of Procedure and Evidence, as amended on 31 May 2012 (SCSL RPE), at Rule 104: ‘(A) After a judgement of conviction … the Trial Chamber, at the request of the Prosecutor or at its own initiative, may hold a special hearing to determine the matter of property forfeiture, including the proceeds thereof, and may in the meantime order such provisional measures for the preservation and protection of the property or proceeds as it considers appropriate. (B) The determination may extend to such property or proceeds, even in the hands of third parties not otherwise connected with the crime, for which the convicted person has been found guilty.’ For discussion of its application see Prosecutor v. Norman and others, Decision on Inter Partes Motion by Prosecution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (Sl) Limited or at Any Other Bank in Sierra Leone, SCSL-04-14-PT, T.Ch., 19 April 2004.

6 Senegalese Code of Criminal Procedure, Art. 87 bis: ‘Lorsqu’il est saisi d’un dossier d’information, le juge d’instruction peut d’office ou sur demande de la partie civile ou du ministère public, ordonner des mesures conservatoires sur les biens de l’inculpé.’ For its application, see Le Procureur Général v. Hissein Habré, Order for provisional measures, EAC Investigative Chamber, 29 October 2013. See also Le Procureur Général v. Hissein Habré, Judgment, EAC A.Ch., 27 April 2017, at para. 296.

7 Special Tribunal for Lebanon, Rules of Procedure and Evidence as amended on 3 April 2017, STL-BD-2009-01-Rev.8, at Rule 82 (C): ‘Upon request of the Prosecutor or the Registrar, or proprio motu after having heard the Defence, the Pre-Trial Judge or the Trial Chamber may request a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties.’

8 2015 Law on Specialist Chambers and Specialist Prosecutor’s Office No.05/L-053, Official Gazette of the Republic of Kosovo, No. 27, 31 August 2015, at Art. 39, para. 11: ‘The Pre-Trial Judge may, where necessary, provide for … the preservation of assets which may be subject to a forfeiture … including temporary freezing orders, temporary confiscation orders or other temporary measures.’

9 UN Doc. S/RES/827 (1993).

10 UN Doc. S/RES/955 (1994).

11 ICTY, Rules of Procedure and Evidence, as amended on 8 July 2015, UN Doc. IT/32/Rev. 50, at Rule 61; ICTR, Rules of Procedure and Evidence, as amended on 13 May 2015, UN Doc. ITR/3/Rev.23, at Rule 61(D) (‘… Upon request by the Prosecutor or proprio motu, after having heard the Prosecutor, the Trial Chamber may order a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties’).

12 Prosecutor v. Milošević and others, Decision on Review of Indictment and Application for Consequential Orders, Case No. IT-99-37-I, T.Ch., 24 May 1999 (Milošević and others Decision).

13 Though the Prosecutor’s application was initially based upon Rule 54 of the ICTY RPE, Judge Hunt ruled that relief under Rules 54 and 61(D) may be given ‘for the same reasons’. Milošević and others Decision, supra note 12, at 28. Rule 54 provides as follows: ‘At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.’

14 Milošević and others Decision, supra note 12, at para. 38.

15 Ibid., at 27. See also C. McCarthy, Reparations and Victim Support in the International Criminal Court (2012), at 47; Young, R., ‘Fines and Forfeiture in International Criminal Justice’, in R., Mulgew and Abels, D. (eds.), Research Handbook on the International Penal System (2016), 102, at 104.

16 Milošević and others case, supra note 12, at para. 27.

17 See Décision de l’Office fédéral de la police dans l’affaire Milosevic Slobodan et autres, 23 June 1999, available at www.admin.ch/opc/fr/federal-gazette/1999/4796.pdf. Frozen assets belonging to Milošević were unfrozen following his death in March 2006 (see McCarthy, supra note 15, at 47).

18 Rome Statute, supra note 1, at Art. 57(3).

19 Ibid., at Art. 93(1).

20 Ibid., at Art. 93(1)(k).

21 Bantekas, I., ‘The International Law on Terrorist Financing’, in Saul, B. (ed.), Research Handbook on International Law and Terrorism (2014), 121, at 132.

22 Guariglia, F. and Hochmayr, G., ‘Article 57’, in Triffterer, O. and Ambos, K. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2016), 1421, at 1435.

23 Ibid.

24 Ibid.

25 Rome Statute, supra note 1, at Art. 58(1)(a).

26 See Guariglia and Hochmayr, supra note 22, at 1435.

27 Prosecutor v. Kenyatta, Decision Ordering the Registrar to Prepare and Transmit a Request for Cooperation to the Republic of Kenya for the Purpose of Securing the Identification, Tracing and Freezing or Seizure of Property and Assets of Francis Kirimil Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-42-Conf, P.T.Ch. I, 5 April 2011.

28 Prosecutor v. Kenyatta, Decision on the implementation of the request to freeze assets, ICC-01/09-02/11-931, T.Ch. V(b), 8 July 2014, at para. 29 (Kenyatta Implementation Decision).

29 See Guariglia and Hochmayr, supra note 22, at 1435.

30 ICC, Rules of Procedure and Evidence, ICC-ASP/1/3 (ICC RPE), at Rule 99(2).

31 W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2016), at 884.

32 See Guariglia and Hochmayr, supra note 22, at 1436.

33 Ibid.

34 ICC RPE, supra note 30, at Rule 99(3).

35 Ibid.

36 Rome Statute, supra note 1, at Art. 82(1)(d).

37 Prosecutor v. Bemba et al., Decision on Mr Kilolo’s ‘Notice of appeal against the decision of the Single Judge ICC-01/05-01/13-743-Conf-Exp’ dated 10 November 2014 and on the urgent request for the partial lifting of the seizure on Mr Kilolo’s assets dated 24 November 2014, ICC-01/05-01/13-773, P.T.Ch. II, 1 December 2014, at 5 (Kilolo Notice Decision).

38 Ibid.

39 Prosecutor v Bemba, Decision on the Defence’s Application for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of Portugal, ICC-01/05-01/08-251-Anx, P.T.Ch. III, 10 October 2008 (Bemba First Lifting Decision).

40 Prosecutor v. Bemba, Decision on the Second Defence’s Application for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of the Republic of Portugal, ICC-01/05-01/08-249, P.T.Ch. III, 14 November 2008, at disposition (Bemba Second Lifting Decision).

41 Ibid., at para. 24. See also ibid., at para. 62.

42 Rome Statute, supra note 1, at Art. 21(1)(a).

43 Ibid., at Art. 21(3).

44 Ibid., at Art. 93(1)(k).

45 Sluiter, G., ‘Human Rights Protection in the ICC Pre-Trial Phase’, in Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2009), 459, at 461.

46 As protected in, e.g., 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 UNTS 2889, at Art. 8.

47 As protected in, e.g., 1952 Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 262, at Art. 1. The protection of this fundamental right was also explicitly acknowledged by Pre-Trial Chamber II in Kilolo Notice Decision, supra note 37, at 5.

48 As protected in, e.g., Rome Statute, supra note 1, at Art. 67(1)(b) and ECHR, supra note 46, at Art. 6.

49 Prosecutor v. Lubanga, Decision on the procedures to be adopted for ex parte proceedings, ICC-01/04-01/06-1058, T.Ch. I, 6 December 2007.

50 Compare the rights afforded to persons during an investigation under Rome Statute, supra note 1, at Art. 55 and those granted to the accused pursuant to Rome Statute, supra note 1, at Art. 67. On the application of the former see C. Hall and D. Jacobs, ‘Article 55’, in O. Triffterer and K. Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary (2016), 1394, at 1395–6.

51 Milošević and others Decision, supra note 12, at para. 27.

52 Prosecutor v. Lubanga, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, ICC-01/04-01/06-1-Corr-Red, P.T.Ch. I, 10 February 2006, at para. 141 (Lubanga Arrest Warrant Decision).

53 See L. Zegveld, ‘Victims’ Reparations Claims and International Criminal Courts: Incompatible Values?’, (2010) 8 JICL 79, at 86–7. The International Military Tribunal for the Far East (IMTFE) reprised this largely retributive model.

54 See, e.g., C. Evans, The Right to Reparation in International Law for Victims of Armed Conflict (2012).

55 Ibid., at 87–8.

56 Zegveld, supra note 53, at 88.

57 Rome Statute, supra note 1, at Art. 93(1)(k).

58 See M. Stiel and C. -F. Stuckenberg, ‘Article 109: Enforcement of fines and forfeiture measures’, in M. Klamberg (ed.), Commentary on the Law of the International Criminal Court (2017), 704, at 705, note 810: ‘The only ground for refusal to enforce fines and forfeiture orders mentioned in the Statute is prejudice to the “rights of bona fide third parties”, an expression nowhere defined in the Statute or RPE. Hence, it seems that national courts have to determine which rights are relevant and when a party qualifies as bona fide, which not only deviates from inter-State practice but may result in an uneven application.’ See also K. Ambos, Treatise on International Criminal Law Volume III: International Criminal Procedure (2016), at 655–6.

59 M. Goldmsith and M. J. Linderman, ‘Asset Forfeiture and Third Party Rights: The Need for Further Law Reform’, (1989) 5 DukeLJ 1254, at 1257.

60 See Prosecutor v. Lubanga, Request to the Democratic Republic of the Congo for the purpose of obtaining the identification, tracing, freezing and seizure of property and assets belonging to Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-22-tEN, P.T.Ch. I, 9 March 2006; Prosecutor v. Lubanga, Request to States Parties to the Rome Statute for the Identification, Tracing and Freezing or Seizure of the Property and Assets of Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-62-tEN, P.T.Ch. I, 31 March 2006.

61 See Prosecutor v. Katanga, Request to the Democratic Republic of the Congo for the purpose of obtaining the identification, tracing, freezing and seizure of the property and assets of Germain Katanga, ICC-01/04-01/07-7-tENG, P.T.Ch. I, 7 August 2007.

62 Prosecutor v. Bemba, Decision and Request to the Republic of Portugal for the purpose of obtaining the identification, tracing, freezing and seizure of property and assets, ICC-01/05-01/08-8, P.T.Ch. III, 27 May 2008 (Bemba Seizure Decision).

63 Prosecutor v. Kenyatta, Decision Ordering the Registrar to Prepare and Transmit a Request for Cooperation to the Republic of Kenya for the Purpose of Securing the Identification, Tracing and Freezing or Seizure of Property and Assets of Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-42, P.T.Ch. II, 5 April 2011 (Kenyatta Seizure Order).

64 L Moreno-Ocampo, ‘Prosecutor’s statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011)’, 2 November 2011, available at www.icc-cpi.int/Pages/item.aspx?name=statement%20by%20luis%20moreno_ocampo%20prosecutor%20of%20the%20international%20criminal%20court%20t.

65 Ibid.

66 Rome Statute, supra note 1, at Art. 93(1)(k).

67 Ibid., at Art. 57(3)(3).

68 Ibid., at Art. 77(2): ‘In addition to imprisonment, the Court may order: … (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.’

69 Lubanga Arrest Warrant Decision, supra note 52, at para. 132: ‘The Chamber notes that, although a first reading of article 57(3)(e) of the Statute might lead to the conclusion that cooperation requests for the taking of protective measures under such a provision can be aimed only at guaranteeing the enforcement of a future penalty of forfeiture under article 77(2) of the Statute, the literal interpretation of the scope of such provision is not clear, because of the reference to the “ultimate benefit of the victims”’.

70 Ibid., at paras. 135–7 (footnotes omitted). See also Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, T.Ch. I, 7 August 2012, at para. 277: ‘The identification and freezing of any assets of the convicted person are a fundamental element in securing effective reparations, and pursuant to Article 93(l)(k) of the Statute, State Parties should provide the Court with timely and effective assistance at the earliest possible stage of the proceedings.’

71 Prosecutor v. Kenyatta, Order concerning the public disclosure of confidential information, ICC-01/09-02/11-967, T.Ch. V(b), 21 October 2014.

72 Kenyatta Seizure Order, supra note 63, at disposition.

73 Kenyatta Implementation Decision, supra note 28, at para. 10, citing Prosecutor v. Kenyatta, Submissions of the Government of the Republic of Kenya pursuant to the ‘Order for Submissions on the Implementation of the Request regarding the Freezing of Assets’, ICC-01/09-02/11-923-Conf-Corr, T.Ch. V(b), 28 May 2014, at para. 12.

74 Kenyatta Implementation Decision, supra note 28, at para. 16.

75 Rome Statute, supra note 1, at Art. 77(2)(b).

76 Prosecutor v. Kenyatta, Dissenting Opinion of Judge Henderson, ICC-0l/09-02/11-931-Anx, T.Ch. V(b), 8 July 2014.

77 Ibid., at paras. 5, 7.

78 Prosecutor v. Bemba et al., Decision on the ‘Requête de la défense aux fins de levée du gel des avoirs de Monsieur Aimé Kilolo Musamba’, ICC-01/05-01/13-1485-Red, T.Ch. VII, 17 November 2015 (Kilolo Lifting Decision), at paras. 17–18.

79 Prosecutor v. (Redacted), Judgment on the appeal of the Prosecutor against the decision of (REDACTED), ICC-ACRed-01/16, A.Ch., 15 February 2016.

80 Ibid., at para. 53.

81 Ibid.

82 Ibid., citing ICTY RPE, supra note 11, at Rule 106 (B); ICTR RPE, supra note 11, at Rule 106 (B); SCSL RPE, supra note 5, at Rule 105 (B).

83 Ibid., referring to Rome Statute, supra note 1, at Art. 75 and ICC RPE, supra note 30, at Rule 94.

84 Ibid., referring to Rome Statute, supra note 1, at Arts. 75(4), 109.

85 Ibid.

86 Ferstman, C., ‘Cooperation and the International Criminal Court: The Freezing, Seizing and Transfer of Assets for the Purpose of Reparations’, in Bekou, O. and Birkett, D. J. (eds.), Cooperation and the International Criminal Court: Perspectives from Theory and Practice (2016), 227, at 236.

87 Prosecutor v. Bemba, Warrant of Arrest for Jean-Pierre Bemba Gombo, ICC-01/05-01/08-1-tENG, P.T.Ch. III, 23 May 2008.

88 Bemba Seizure Decision, supra note 62, at para. 4 and disposition.

89 Prosecutor v. Bemba, Registrar’s Decision on the Application for Legal Assistance paid by the Court Filed by Mr Jean- Pierre Bemba Gombo, ICC-01/05-01/08-76-tENG, P.T. Ch. III, 25 August 2008.

90 Prosecutor v. Bemba, Application for Lifting the Seizure, ICC-01/05-01/08-81-Conf-tENG, P.T.Ch. III, 26 August 2008.

91 Bemba First Lifting Decision, supra note 39, at disposition.

92 Ibid., at paras. 15–16.

93 Cf. the extensive discussion of the jurisprudence of the European Court of Human Rights by the ICC Presidency in Prosecutor v. Bemba, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, ICC-01/05-01/08-310, Presidency, 5 December 2008, at paras 32–43.

94 Bemba Second Lifting Decision, supra note 40, at para. 8.

95 Ibid., at disposition.

96 Ibid., at para. 24.

97 Prosecutor v. Bemba et al., Warrant of arrest for Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1-tENG, P.T.Ch. II, 20 November 2013.

98 Kilolo Lifting Decision, supra note 78, at para. 2.

99 Ibid., at para. 15, referring to Prosecutor v. Bemba et al., Addendum à la ‘Requête de la défense aux fins de levée du gel des avoirs de Monsieur Aimé Kilolo Musamba’, ICC-01/05-01/13-1014-Conf-Exp, T.Ch. VII, 28 July 2015, at paras. 15, 28.

100 Kilolo Lifting Decision, supra note 78, at disposition.

101 Kilolo Lifting Decision, supra note 78, at paras. 21–2 (footnotes omitted).

102 Kilolo Lifting Decision, supra note 78, at para. 21.

103 On which see A. Jones, ‘Insights Into an Emerging Relationship: Use of Human Rights Jurisprudence at the International Criminal Court’, (2016) 16 HRLRev 701, at 724; N. Croquet, ‘The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?’, (2011) 11 HRLRev 91; and Nerlich, V., ‘Article 21 (3) of the ICC Statute: Identifying and Applying “Internationally Recognized Human Rights”’, in Lobba, P. and Mariniello, T. (eds.), Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals (2017), 73, at 82.

104 Kilolo Lifting Decision, supra note 78, at para. 22

105 Ibid.

106 Ibid.

107 Ibid.

108 Ibid., at para. 23.

109 Ibid., at para. 17.

110 Ibid., at para. 18.

111 Ibid., at para. 19.

112 Ibid., at para. 20, citing ICC RPE, supra note 30, at Rule 21(5): ‘Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.’

113 Ibid., at para. 22.

114 Ibid., at para. 23.

115 Ibid., at para. 22.

116 On which see van den Herik, L., ‘The Individualization of Enforcement in International Law: Exploring the Interplay between United Nations Targeted Sanctions and International Criminal Proceedings’, in Maluwa, T., du Plessis, M. and Tladi, D. (eds.), The Pursuit of a Brave New World in International Law: Essays in Honour of John Dugard (2017), 234, at 260 : ‘Article 75(4) of the ICC Statute seems to indicate that protective measures solely for reparation purposes can only be made after conviction. Yet, in practice, Pre-Trial Chambers have effectively ordered the identification, tracing, freezing or seizing of assets already in the pre-trial phase with a view to rendering the reparation system effective. In case of a request for protective measures for reparation purposes, there is no requirement that the assets have a nexus with the crime.’

117 Rome Statute, supra note 1, at Art. 21(3).

118 See Senegalese Code of Criminal Procedure, supra note 6, at Art. 87bis.

119 Smeulers, A., Hola, B. and van den Berg, T., ‘Sixty-Five Years of International Criminal Justice: The Facts and Figures’, (2013) 13 IntlCLR 7, at 16–18. The study provides empirical data gathered from the IMT, the IMTFE, the ICTY, the ICTR, the ICC, the SCSL, the ECCC, the STL, and the Special Panels for Serious Crimes.

120 Ford, S., ‘Complexity and Efficiency at International Criminal Courts’, (2014) 29 EmoryIntlLRev 1.

121 At the time of his first appearance before the ICC, Bemba is reported to have owned ‘a large business empire’ (M. Simons, ‘Jean-Pierre Bemba, Congolese politician, appears in Hague court’, New York Times, 4 July 2008).

122 See B. Pires, ‘Junk or worth preserving?’, Jornal 123 Portugal, 14 March 2012.

123 Prosecutor v. Bemba, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, ICC-01/05-01/08-3636-Red, A.Ch., 8 June 2018.

124 Prosecutor v. Bemba, Public Redacted Version of ‘Preliminary application for reclassification of filings, disclosure, accounts and partial unfreezing of Mr. Bemba’s assets’, ICC-01/05-01/08-3654-Red, T.Ch. III, 30 October 2018.

125 S Zappalà, ‘The Rights of Victims v. the Rights of the Accused’, (2010) 8 JICJ 137, at 142.

* This article is based on a paper given by the author at the 6th Biennial Conference of the Asian Society of International Law, Junior Scholars’ Workshop, held at Yonsei University in Seoul, Republic of Korea, on 24–25 August 2017. The author is grateful to Upendra Acharya, Buhm-Suk Baek and Ethan Hee-Seok Shin for critical discussion of the paper. The author also wishes to thank Nina Jørgensen, Gregory Gordon, Göran Sluiter, Denis Abels and the two anonymous peer reviewers for their feedback on earlier drafts of this article.

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