II. Discussion

A. Principles, and ambiguities, of Article 75.

Not unsurprisingly, Article 75 does not answer many of the salient questions that will necessarily arise when fleshing out and installing a reparations regime.6 Most relevantly, though, this section of the Rome Statute does provide one significant convention and two important tools for structuring reparations. Article 75 also includes built-in protections for stakeholders concerned that the ICC will issue orders without a full and impartial review of the evidence.7

The convention comes from paragraph two, where the treaty explicitly states that the “Court may make an order directly against a convicted person specifying appropriate reparations.”8 That language largely eliminates the possibility that a collective society can directly bear the costs from an order for reparations. Further, as briefly mentioned above, making a country pay for the sins of its unelected leaders would fundamentally alter the obligations of State Parties. Consequently, the ICC is unlikely to foist this additional responsibility upon State Parties through its interpretation of Article 75, which could jeopardize its own legitimacy. Thus, while many distinguished scholars support the proposition that reparations directly from a society are justified because a society indirectly, and thus unlawfully, benefited from the heinous acts of a leader,9 the Rome Statute, by its exclusive focus on “a convicted person,”10 probably does not.

The regime by which the ICC will exact reparations from a convicted perpetrator, however, is left up the Court. As such, the ICC has discretion in crafting “principles related to reparations to, or in respect of, victims, including restitution, compensation, and rehabilitation.”11 In other words, while the Court must articulate its rationale for reparations, it has wide latitude in the details of both the analytics for determining the appropriate level of reparations, in addition to the actual decision concerning the proper reparations for any given case.

The mechanisms for effectively carrying out that task, in addition to deciding other issues incident to a reparations order, come from paragraphs four and five: which call upon State Parties to assist both in the process of determining the appropriate level of reparations, in addition to enforcing any forfeiture orders of the ICC.12 Paragraph four of Article 75 grants the Court the power to enlist support from State Parties pursuant to the different means available in paragraph one of Article 93.13

Taken together, the paragraphs of Article 75 give the ICC a vast canvas to develop a reparations regime. With that in mind, the stage is set for considering how the ICC should, pursuant to Article 75, handle stolen state assets commingled with the personal assets of the convicted.

The introduction attempted to display the difficulty involved with determinations of both asset ownership and origin. The previous paragraphs argued that the ICC will not allow stolen state assets included in reparations—for the simple reason that State Parties will not stand for it (and the ICC’s legitimacy remains more important than ever). Thus, the ICC, after concluding that reparations are owed and following the discovery of available assets to finance those reparations, must answer the following two questions. First, did the convicted personally own a particular asset? If not, because the ICC will interpret Article 75 as a grant of authority to enter a reparations order only against the convicted perpetrator, those assets must be considered unavailable. On the other hand, if the Court finds personal ownership of an asset by the convicted perpetrator, a second, much more vexing inquiry, arises: did the convicted obtain this asset through legal (and/or legitimate) means? The definition of “legal” presents a challenge here precisely because the law, if it even existed on point, may have given the convicted perpetrator’s absolute authority to do as he or she wished.14 Consequently, the ICC must also ask a related question: did the convicted perpetrator obtain assets through internationally accepted norms of contract? While fraught with some ambiguity, failing to inquire also as to this latter transactional question may well cause many assets that were effectively stolen from both individuals and the people of the country to be included as reparations. Even as that makes the reparations process more difficult, and probably ensures that less money will be able available for victims, this second, critical inquiry protects the growing legitimacy of the ICC.

To summarize, that leaves two possibilities if assets are found to be personally owned by a convicted perpetrator. First, the asset class originating from both legal and legitimate, contractual means remains available for reparations. Second, the asset class not originating from legal and/or legitimate, contractual means is unavailable for reparations.

In light of these challenges, I propose a reparations regime to decide, most effectively, the availability of assets. I do so keeping in mind the authority that Article 75 has already delegated to the ICC to accomplish this task.

B. A procedural regime to decide disputes over whether assets qualify for reparations.

One thing is certain: Best practices in financial record keeping must take a dramatic turn for the better in countries where war criminals tend to reside or the ICC will find itself in an endless search of illusory financial records. Despite that reality, I propose an analytical framework that takes into account that difficulty, inter alia. This regime proceeds utilizing the ICC organ especially suited for the task: the trial division.

The trial division of the ICC is uniquely positioned to decide issues of fact. It will have the experience, not simply with these issues generally, but also with the facts surrounding the actual conviction itself. Concerns of judicial expertise and economy, then, support the trial division’s role as the finder of fact. A look to the alternatives15 confirms that conclusion, as the only other possible judicial division within the ICC, the pre-trial division, would face a steeper learning curve, thereby prolonging the proceedings beyond what is necessary. That also assumes, of course, that the appeals division is available for judicial review.

The trial division would proceed by making findings of fact according to the following procedure. First, it would handle questions of personal ownership—which includes concepts of possession. This definition would not deploy a legal doctrine known as constructive possession. Consequently, assets which a convicted person only had the ability to exercise dominion and control over will be excluded from the analysis. The importance of utilizing a narrower definition of possession, particularly one that does not focus on influence, stems in part from a recognition that a top governmental official likely exercises influence over many state assets. I have declined to adopt a collectivist ethic, however—and I believe the ICC will concur in that decision—so that doctrine has no use given the choice to exclude state assets from payment as reparations.

This inquiry of ownership will involve traditional determinations of physical control, including an examination of the other bundle of rights which provide that control.16 Without getting too fixated on these details, though, it is worth noting that the ICC will not be breaking new legal ground in determining ownership of assets. Notably, as mentioned previously, the sparse records that tend to exist when conventional means of proving ownership are absent make this process particularly difficult. After all, why bother with documentation when no practical need to prove ownership is present? Consequently, this analysis will likely turn on evidence of physical control—a form of evidence much easier to obtain than hidden paper records.

That presents an interesting quandary. One possibility includes employing a traditional preponderance of the evidence standard. The expectation here, though, is that evidence will be sparse. But because this process involves divesting a portion of a convicted perpetrator’s assets to victims, I suggest implementation of a strong procedural safeguard to protect the legitimacy of the ICC in this process: requiring prosecutors to bear the burden of proof by a standard of clear and convincing evidence. Undoubtedly, given the evidentiary difficulties in this context,17 that represents a high bar. But if the ICC, a still very young and developing international criminal tribunal, decides to redistribute a convicted perpetrator’s assets to victims, it will face fierce attacks on its legitimacy—especially when little documentation exists. This high bar also protects a State Party from an order that includes assets that should remain with a state.

This first step, then, identifies the pool of potentially available assets for reparations. The second, and final, category of inquiry examines the origins of ownership. More specifically, the trial division should decide, based upon the evidence before it, whether a convicted perpetrator obtained an asset according to international norms of contract—including principles of acceptance, consideration, fraud, and duress, inter alia.18 This transactional analysis will ensure that governmental assets or revenues that were simply captured by a convicted leader, as opposed to those obtained through legitimate means (as exemplified through international norms of contract), will be returned to the true owners—the state itself.19 Forensic accountants will likely prove crucial for the ICC to have any sense of how a convicted perpetrator obtained an asset.

If, as expected, transactional evidence in these situations remains in the control of convicted perpetrators and State Party interveners, a rule placing a small burden of proof on these parties makes good sense—which explains why I structure the procedure regime in this fashion.20 As opposed to the first step of this analysis, this second conjunctive stage requires a convicted perpetrator and/or a State Party intervener to demonstrate a valid transaction by a preponderance of the evidence. Because contractual evidence heavily relies upon paper proof (unlike the first step where proof of ownership will generally turn on showing physical control), which likely resides in the hands of convicted perpetrators, placing the burden on prosecutors would create a perverse incentive to conceal. It is worth emphasizing the character of evidence in these situations: a strong likelihood exists that convicted perpetrators and State Party interveners possess relevant evidence in a manner that makes it unavailable to the public. Ergo, I propose that the convicted perpetrator, and any interveners opposed to the prosecution, should bear the burden of proof here by a preponderance of the evidence.

This standard addresses the proof problem, by forcing those with the evidence to display it (or risk losing their assets). It does so with a lower standard than the ownership examination, though, given the remaining legitimacy and equity concerns. Both of these counsel against setting a high bar for convicted perpetrators and State Party interveners, especially since these parties already have meaningful incentives to present proof.

III. Conclusion

My proposal seeks to strike the right balance between proof problems and equity and legitimacy concerns. It also remains precisely—and solely—focused on identifying the convicted perpetrator’s assets. Undoubtedly, given the expected complications, forensic accounting will be relied upon to a large extent by the trial division. Of course, the limits of forensic accounting will also be exposed. At bottom, though, the ICC is trying to understand minute financial details in locations where accounting follows anything but best practices. This procedural framework attempts to work, most effectively, within these constraints.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Rome Statute of the International Criminal Court, art. 75(2), Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

2. 2.

   See, e.g., John Edlin, Zimbabwe’s Deadly Cancer, The Toronto Star, April 17, 1988, at H4 (indicating that Nkrumah was virtually penniless in 1957 when he became the leader of the newly independent Ghana, but had amassed millions of dollars and ran up large government debts by the time he was overthrown nine years later in a military coup.). ↩

3. 3.

   See Kate Devlin, Hunt for Gadhafi Billions, The Herald (Glasgow), Oct. 22, 2011, at 1 (“Experts fear that many of the assets will be hard to trace.”). ↩

4. 4.

   See Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689, 690 (2003). ↩

5. 5.

   Rome Statute, supra note 1, art. 75(2). ↩

6. 6.

   See David Scheffer, The Rome Statute of the International Criminal Court, 93 Am. J. Int’l L. 22, 39 (1999). ↩

7. 7.

   See Rome Statute, supra note 1, art. 75(3) (“Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.”). ↩

8. 8.

   Rome Statute, supra note 1, art. 75(2). ↩

9. 9.

   See, e.g., Alfred L. Brophy, Reconsidering Reparations, 81 Ind. L.J. 811, 834-35 (2006). ↩

10. 10.

    Rome Statute, supra note 1, art. 75(2). ↩

11. 11.

    Id. ↩

12. 12.

    Id., art. 75(4)-(5). ↩

13. 13.

    Id., art. 75(4). ↩

14. 14.

    See Abdelaziz Barrouhi, Gaddafi says Libya should have a head of state, Reuters, Mar. 2, 2000 (Seeing as “the green book” represented the closest thing to any legal authority in pre-civil war Libya, Libyan leader Muammar Gaddafi arguably possessed the legal authority to do as he pleased). ↩

15. 15.

    Theoretically, the ICC might be able to appoint some type of a special master to advise it on these sorts of issues, but even then the judges would (presumably) still render an independent judgment. ↩

16. 16.

    See generally 73 C.J.S. Property § 43 (explicating the contours of “ownership”). ↩

17. 17.

    See Devlin, Rome Statute, supra note 3, at 1. ↩

18. 18.

    See, e.g., International Institute for the Unification of Private Law (UNIDROIT), Principles of International Commercial Contracts (1994). Available online. ↩

19. 19.

    Naturally, a debate will surround “who” should receive the returned spoils. This answer, in my view, should turn on finding legitimate representatives of a state to steward these resources. ↩

20. 20.

    The obvious reason being that if the prosecution can prove ownership through clear and convincing evidence, then the convicted most likely has the evidence to show the origins of ownership. A State also likely possesses key evidence which, for a variety of reasons, it may be reluctant to bring forward. The burden of proof here provides it some incentive to overcome that hesitation. ↩