The enforcement of fines and forfeiture measures ordered by the International Criminal Court: the critical role of States

• Author: Etienne Kentsa
• Position: Assistant lecturer
• Pages: 77-98

The enforcement of fines and forfeiture measures ordered

by the International Criminal Court: the critical role of States

Assistant lecturer Etienne KENTSA1

Abstract

This paper aims at analyzing the legal regime for th e enforcement of fines and

forfeiture measures as provided by the Rome Statute of the International Criminal Court

(ICC). The institution of this category of penalties and measures is unprecedented in

international criminal law and has as major ambition of ensuring reparations for victims.

The success of the restorative justice system under the Statut e is dependent on the efficiency

of the enforcement of fines and forfeitures ordered by the Court. Such success is actually

based on domestic legal systems. Analysis of enforcement mechanisms o f fines and

forfeitures shows that the assistance of State authorities is vital in the enforcement of ICC

decisions. To ensure effective enforcement of fin es and forfeiture, the Statu te enshrines the

application of national legislation; which implicitly requires States Parties other wise to

adopt appropriate legislation, at least to undertake the adaptation of existing legislation.

The satisfaction of this substantial requirement enables the States Parties to serenely

execute their major obligations in this area (the obligation to give effect to fines or

forfeitures ordered by the Court and the obligation to protect the rights of bona fide third

parties).

Keywords: Fine, forfeiture, forfeiture order, lex fori, Enforcement measures,

cooperation.

JEL Classification: K33

1. Introduction

The operationalization of the restorative justice system2 established by the

Rome Statute depends on the effectiveness of enforcement of fines and forfeiture

measures decided by the ICC. Indeed, effective redress is financed not only by

goods and products from enforcement of fines, but mainly by contributions that

benefited the Trust Fund for Victims (TFV). The Statute empowers the latter to

order the forfeiture of property and assets considered as directly or indirectly

1 Etienne Kentsa - PhD candidate at the University of Dou ala, Cameroon, Assistant Lecturer at the

Faculty of Social and Management Sciences (Department of Law), University of Buea, Cameroon,

kentsienne@gmail.com

2 Before the adoption of the Rome Statute, international criminal justice always had this unfortunate

trend of neglecting victims, as the priority is most often th eir perpetrators. Although any efficient

criminal justice cannot be only retributive but shall better compensate victims for the damage

suffered. Julian FERNANDEZ therefore talk of “le passage d’une justice rétributive axée sur la

condamnation de l’accusé à une justice restorative qui pose la victime au cœur de l’action

judiciaire”; see Julian FERNANDEZ, Variations sur la victime et la justice pénale internationale,

“Amnis (Revue de civilisation contemporaine Europes/Amériques)”, No. 6, 2006, document

available online at http://amnis.revues.org/890 (consulted on 18 September 2015).

Volume 6, Special Issue, October 2016 Juridical Tribune

78

related to crimes under its jurisdiction. The Court may therefore, in addition to the

prison sentence, add the following: “a) [a] fine under the criteria provided for in the

Rules of Procedure and Evidence; 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.”3 Thus, ICC is the first international criminal tribunal

explicitly given the power to impose fines against individuals. The International

Military Tribunal at Nuremberg, although it had a wide discretion in sentencing, it

never imposed a fine4. Neither the ICTY nor the ICTR are entitled to impose fines,

even though both ad hoc tribunals have adopted rules on fines for misconducts like

contempt of Tribunals5.

Article 77-2 of the Rome Statute gives the impression that fine and

forfeiture « ne peuvent être prononcées exclusivement qu’au titre de peine

accessoire. »6 In this regard, even if the Rules of Procedure and Evidence (RPE)

can leave the debate open, the strict interpretation of the Statute shall permit to

exclude them from being delivered as main one in a case. In order to determine the

amount of the fine, the Court must take into consideration the financial capacity of

the convicted, reparations to victims pursuant to Article 75 of the Statute, as well as

the fact that personal gain was or not a motive for the crime and, if so, to what

extent7. The Court shall especially take into consideration, in addition to the above

considerations, damages and injuries caused and related profit obtained by the

author. However, under no circumstances may the total amount exceed 75 per cent

of the value of the convicted person’s identifiable assets, liquid or realizable, and

property, after deduction of an appropriate amount that would satisfy the financial

needs of the convicted person and his or her dependants8.

As far as forfeiture is concerned, one should note that the properties used

to commit the crime are excluded from the list of Article 77-2-b) 9. These are

excluded from forfeiture procedures.

One will undertake to demonstrate that as all decisions by international

criminal tribunals, fines and forfeiture measures cannot be executed without the

3 Rome Statute, article 77-2.

4 Agreement between the temporary government of the French Republic and USA, United Kingdom

of Great Britain and Northern Ireland governments and Union of Socialist Republics for the

Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the

International Military Tribunal, 8 August 1945, 82 R.T.N.U. 279, art. 2 7; see Valerie

OOSTERVELD, Mike PERRY and John MCMANUS, The Cooperation of States with the

International Criminal Court, “Fordham International Law Journal”, vol. 25, No. 3, 2001,

pp. 767-839 (spec. p. 822).

5 Rules 77-A and 91-D of RPE of ICTR; rules 77-H, 77 bis and 91-E of RPE of ICTY.

6 See Damien SCALIA, Article 77 – Peines applicables, in Julian FERNANDEZ and Xavier

PACREAU (dir.), Statut de Rome de la Cour pénale internationale, Commentaire article par

article, Pedone, Paris, 2012, pp. 1677-1684 (spec. p. 1681).

7 RPE of ICC, rule 146-1.

8 Ibid., rule 146-2.

9 Rolf Einar FIFE, Article 77, in Otto TRIFFTERER (ed.), Commentary on the Rome Statute of the

International Criminal Court, Observer’s n otes, Article by Artic le, Baden-Baden, Nomos, 1999,

pp. 1419-1432 (spec. p. 1430).