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

Author:Etienne Kentsa
Position:PhD candidate at the University of Douala, Cameroon
Pages:77-98
SUMMARY

This paper aims at analyzing the legal regime for the 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... (see full summary)

 
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The enforcement of fines and forfeiture measures ordered
by the International Criminal Court: the critical role of States
Assistant lecturer Etienne KENTSA
1
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 system
2
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 fine
4
. 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 Tribunals
5
.
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
extent
7
. 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 dependants
8
.
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).

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