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The International Criminal Court (ICC) and the United Nations Security Council both have the power to request states to freeze individuals’ assets. In his PhD research, UvA jurist Daley Birkett looks at the way in which the two bodies exercise their asset freezing powers, with a particular emphasis on the rights of those individuals on the receiving end of such measures. Birkett will receive his doctorate on Friday, 19 February, from the University of Amsterdam.

Impounded private jet of Jean-Pierre Bemba (photo: Bruno Felipe Pires)

In pursuing its mandate to end impunity for the world’s worst crimes, the ICC is not only empowered to request states to arrest people, but also to identify, trace, freeze and seize their assets. Similarly, the UN Security Council has the power to request states to freeze individuals’ assets in furtherance of its responsibility for maintaining or restoring international peace and security. But with assets being frozen for the duration of notoriously lengthy international criminal trials or until international peace and security is restored, the seizures are rarely short in duration. In his research, Birkett examines whether the use of such measures is consistent with the rights of the individuals against whom they are imposed.

Birkett: ‘I wanted to look at whether a fair balance was being struck between the need for prevention and, in the case of the ICC, potential restitution, on the one hand, and the protection of rights on the other.’

Villa in the Algarve and a private jet

Birkett looks in-depth at the example of Jean-Pierre Bemba Gombo, a former vice-president of the Democratic Republic of Congo, who was arrested on an ICC warrant in Belgium. At the time of his arrest, Bemba was reported to be a millionaire, in control of a large business empire, and owning luxury assets in a number of states, including a villa in the Algarve in southern Portugal and a private jet.

Three days after Bemba was apprehended, the ICC asked Portugal to take ‘all necessary measures to identify, locate, freeze or seize the property and assets’ belonging to him located on its territory. Later filings showed that Belgium and Cape Verde had received similar requests from the ICC. In March 2016, Bemba was convicted on two counts of crimes against humanity and three counts of war crimes, but, on 8 June 2018, more than 10 years after his arrest, the ICC Appeals Chamber reversed all of his convictions.

Slowly turning wheels of international criminal justice

10 years is far longer than most domestic legal processes would take to run their course, but is certainly not unusual in international criminal tribunals – at the International Criminal Tribunal for the former Yugoslavia (and now at its successor institution the International Residual Mechanism for Criminal Tribunals), the case against former Serbian intelligence officers Jovica Stanišić and Franko Simatović is just about to enter its 19th year since their arrest. This means the risk that their seized assets, if any, will depreciate in value is probably greater for those caught in the slowly turning wheels of international criminal justice.

In 2019, Bemba filed a claim for compensation and damages against the ICC, part of which pertains to his assets. In short, Bemba claimed that the ICC acted negligently in seizing and freezing his assets, as well as in managing them after their freezing. He sought damages to the tune of €42.4 million. The court eventually dismissed the claim in May last year.

Had Bemba been convicted on appeal, it is entirely plausible that victims’ representatives could have made similar representations to those filed by Bemba, claiming instead that his frozen assets should have been better managed with a view to their being used to secure the enforcement of a reparations award against him. Daley Birkett

In his PhD thesis, Birkett looks at the effects of prolonged asset seizures such as those found in the Bemba case and identifies gaps in the ICC’s legal framework relating to the management of such assets. He goes on to suggest a number of possible remedies for them. He also seeks to identify various ways in which certain states could adapt their domestic law in order to allow for improved cooperation with the ICC in cases where asset seizures are used, in order to mitigate any possible depreciation.

Birkett: ‘In the end, I concluded that the asset seizures implemented by the ICC and the UN Security Council are largely consistent with the rights of the targeted individuals, but the duration of these seizures often causes problems on its own. In order to safeguard the targets’ rights, I would suggest that the two institutions review the measures on a regular basis and take reasonable steps to preserve the value of any frozen assets.’

PhD details
Daley Birkett: Asset Freezing at the International Criminal Court and the United Nations Security Council: A Legal Protection Perspective. Supervisor: Prof. G.K. Sluiter.

Time and location
Daley Birkett's PhD defence will take place online on Friday, 19 February, at 16:00.