“Change is the only constant”, said Heraclitus.

This statement as a whole gives rise to two main

interpretations, it either affirms the fact that the factor of change is inevitable with the
circumstances reforming themselves, or it rather suggests that the changes ought to be made so as
to tackle the predicaments that arise in the due course of time, outdating the earlier practices. On
that completely abstract notion put up, my article rather focuses on the second interpretation with
special emphasis on an incident that I happened to follow in the recent times. Jean Pierre Bemba,
the former Vice President of the Democratic Republic of Congo was convicted in the year 2016 for
crimes against humanity and numerous war crimes in the Central African Republic from 2002 to
2003, by the International Criminal Court deriving it’s jurisdiction under the Rome Statute.

The Presiding judges of the Trial Chamber III were of the opinion that the crimes of Murder, Rape
and Pillage committed by Bemba were of very serious gravity especially while taking into
consideration the fact that the crimes were committed against “defenseless victims” with
“Particular Cruelty”. The relevant provisions under which he was sentenced were:

Article 7(1)(a)- Murder under Crimes against Humanity

Article 8(2)(c)(i)- Murder under War Crimes

Article 7(1)(g)- Rape under Crimes against Humanity

Article 8(2)(e)(vi)- Rape under war crimes

Article 8(2)(e)(v)- Pillaging under war crimes.

Not to mention, Mr.Jean Pierre Bemba was sentenced to 18 years of imprisonment. Things however
took a turn in June of 2018 when the Appeals Chamber of the International Criminal Court acquitted
him of all his charges in a 3-2 ruling which in my humble opinion is a mere setback with special
reference to punishments against one of the audacious acts against humanity, The Sexual Crimes.
The judgement which was pronounced in the year 2016 was more or less hailed as one of the
greatest advancements with special emphasis on the International Criminal Law as it concentrated
on the sexual violence as the main crux of this case. Thanks to Evidentiary Inconsistencies, or atleast
that was what the appeals court had stated with regards to the acquittal of Bemba reversing the
decision of the International Criminal Court which had worked for nearly four and a half years after
taking into consideration the testimony of 77 witnesses.

With that having been said, Bemba filed a claim for compensation of over €69 million taking into
account two main components. The first one was under Article 85(3) of the Rome Statute while the
second one was with regards to the alleged losses he had to bear because of the fact that his assets
were frozen by the order of the Court along with the failure of court to manage and preserve his
property. Article 85(3) of the Rome Statute states that:

“In 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.”

First of all, the main component with regards to this provision under the Rome Statute is to prove
that the acquitted individual has been subject to a grave and manifest miscarriage of justice which in
itself is more or less subjective placing the onus on the individual to prove the same. In my humble
opinion the terms like “Grave” “Manifest” “Justice” aren’t clearly defined which further gives rise to
a lot of complexities and further makes compensation a fairly far-fetched concept with reference to
this provision. This claim was rejected by the court stating that Bemba had failed to establish that he
had suffered a grave or manifest injustice and thus declined to award compensation to Bemba on
this front.

Second of all, the court was of the view that the matter under consideration doesn’t fall under the
scope of Article 85 of the Rome Statute, for it takes into consideration the freezing of assets which
comes under 93(1)(k) which talks about the co-operation between the court and the states.

The rejection of the claim for compensation is not new for the Court as it is noteworthy to mention
that Mathieu Ngudjolo’s claim in 2015 and Jean Jacques Mangenda Kabongo’s claim In 2016 were
rejected based on this premise, while the facts of these cases were more or less similar to that of the
present case we are dealing with. Based on the opinion of the court where It mentioned that Bemba
had failed to established that he had suffered grave and manifest injustice even after convincing
arguments I am of a very strong opinion that owing to the ambiguity of the subjective terms that
were used in the Provision as such, the court In itself had set up very high standards pertaining to
whatever comes under the scope of this article. For the very first time In this case, the court had
talked about the scope of it’s responsibility under Article 93(1)(k) wherein it basically affirmed that
the responsibility of the maintenance of such a frozen property as under this statute lies with the
states alone while the court’s responsibility stops at ordering the states to carry out the same. Ironic,
isn’t it? Because this is the same court that held Bemba accountable not just for the crimes
committed by him as an individual but also for the crimes committed by his militia under his
authority. I brought this point out here just to emphasize on the fact that the states in themselves
are agents of the ICC taking into consideration the fact that they have signed the Rome Statute and
also act based on the interests of the court while any provision of the Statute is invoked.

First of all, there ought to be an amendment in the wording of the Rome Statute wherein either an
explanation to the terms “Justice” “Grave” and Manifest is to be given or the terms in themselves
will have to be replaced with those that are less prone to ambiguity. This issue merely arises because
of the fact that the court, be it in the previous cases or in the case of Bemba had only rejected but
did not clearly define as to what comes under the ambit of these ambiguous terms. The Right to
seek compensation is seen as one of the Basic Human Rights not just in the United Nations but also
in the individual legislations of the signatories of Roman Statute and thus it is high time that the
court takes into consideration the humanitarian aspect of the Article before trying to determine the
same. In the case of Bemba, again, his properties were frozen atleast for more than 10 years and this
is a matter of grave concern and calls for an immediate need for compensation as soon as he was
acquitted. While I would still stand by my opinion that his acquittal was not fair, as I call for a change
in the standards of proof, Considering the fact that he was acquitted by the court, I would only like
to argue based on his rights to seek compensation.

While it is indisputable that the liability for the assets of Bemba lies with the authorities who had
frozen them in Portugal, DRC, Belgium and Cape Verde absolving the court of it’s responsibility
indeed doesn’t make sense taking into consideration the fact that the court order prompted these
authorities to freeze his assets. Using Qui facit per alium facit per se we observe that the court has
its fair share of responsibility with regards to the handling of frozen assets. When we look into the
statutory framework of the Court pertaining to this matter, it is more or less weak and is rigid with
no substantiation which calls for the court to use its discretionary powers wisely to comprehend the
outcome of the claim. The absence of any precedent to determine the same further escalates the
situation and supports my aforementioned claim.

Speaking of Article 93 (1)(k) it is imperative to note that the court had the powers to seize, freeze
and take other action against the assets of Mr.Bemba, however claiming that the court has no
obligation regarding the maintenance or preservation of the possession more or less renders Article
93(1)(k) meaningless. To get a better understanding of the obligations of the court, we ought to
invoke provisions under the Articles on the Responsibility of International Organisations. In very
simple terms, this deals with the wrongful acts that arise when states perform an obligation at the
request of/on behalf of International Organisations. Although arguments may arise wherein freezing
of assets will be governed by Municipal Laws which vary from state to state, it doesn’t completely
nullify the fact that these member states have performed the function on the request of the court.

Firstly, when we look into Article 2(d) of the ARIO, it states that

“agent of an international organization” means an official or other person or entity, other than an
organ, who is charged by the organization with carrying out, or helping to carry out, one of its
functions, and thus through whom the organization acts.”

For an entity to be classified as an agent under this provision, it is imperative that it is charged by an
International Organisation to carry out its functions. Now what comes under the scope of
International Organisation?

“international organization” means an organization established by a treaty or other instrument

governed by international law and possessing its own international legal personality. International
organizations may include as members, in addition to States, other entities”

For starters, the ICC comes under the scope of an organisation that is established by a treaty (The
Rome Statute) and has it’s own International Legal Personality (or in other terms mandate) of
dealing with the prosecution of individuals for war crimes, crimes against humanity and crimes of
aggression and thus, I am of the opinion that it comes under the scope of “International
Organisation”

Taking the above inference into consideration, The authorities that took custody of Bemba’s assets
are said to be the Agents of ICC for, they have acted upon the direction of the Charge sheet filed by
ICC in the year 2008. Firstly taking into consideration Article 6(1) of ARIO, it states that

“ The conduct of an organ or agent of an international organization in the performance of functions

of that organ or agent shall be considered an act of that organization under international law,
whatever position the organ or agent holds in respect of the organization”

Taking this into consideration we can draw a conclusion that the financial loss was caused by the
agents of the court thereby holding the court responsible and making Bemba eligible to receive his
compensation.

Further, when we look into Article 7 ARIO, it states that

“The conduct of an organ of a State or an organ or agent of an international organization that is

placed at the disposal of another international organization shall be considered under international
law an act of the latter organization if the organization exercises effective control over that
conduct.”
When the court Invokes Article 93(1)(k) of the Roman Statute it invariably exercises control over the
conduct of the state by directing it to do something thereby placing the obligation on International
Criminal Court to compensate for the losses of Bemba.

The issue calls for a better asset management at ICC with appropriate directions to be given to the
states acting within the jurisdiction of the parent statute of ICC. The court should’ve gone through
the legal and factual circumstances of Bemba’s claim while determining its jurisdiction before
delivering its judgement. Not to mention, the court has to either explain the scope of the wordings
in Article 85 and liability under Article 93(1) of the Rome Statute or change them in order to remove
any ambiguity. The questions on the scope, responsibilities, rights and obligations lie at the very
heart of court’s credibility, with the court trying to escape from contemplating the same, it had
missed out an important opportunity to strengthen its base of functioning. This calls for a change to
step up the plate and write your story forward (Gandalf, Lord of the Rings).