Article 85 of the Rome Statute (the “Statute”) is a provision that is novel, with Article 85(3) being, to this day, unique and specific to the Statute. The absence of this provision in any other international instrument is a judicially noted fact. Nevertheless, Article 85(3) of the Statute has seldom been used to its benefit. Article 85(3) of the Statute which provides for circumstances under which compensation may be provided to an acquitted person mandates the occurrence of a ‘grave and manifest miscarriage of justice’ as a pre-condition to receive compensation. What seems to have deferred the application of Article 85(3) of the Statute so far is the high threshold set in the interpretation of ‘grave and manifest miscarriage of justice’. The object of this piece is to analyse the sporadic use of this provision.
The most recent judicial interpretation of the mentioned provision can be seen in the Pre-Trial Chamber of the International Criminal Court’s dismissal of the compensation claim made by Jean-Pierre Bemba Gombo. Essentially, Mr Bemba’s compensation claim consisted of two parts—the first, pursuant to Article 85(3) of the Statute and the second, under the inherent powers of the court—seeking compensation for damage to his property. This post aims to address the issues concerning the first part of the claim. Hence, the decision of the court regarding the second part of the claim, which has a distinct plethora of concerns, is beyond its scope.
Interpretative concerns of Article 85(3) of the Statute
The court in Mr Bemba’s compensation claim noted that the grievances that were submitted for a claim under Article 85(3) of the Statute had already been addressed by the appeals chamber—which resulted in Mr Bemba’s acquittal—and hence would not be apposite for a claim under the said provision. The court employed the Ngudjolo decision to further this rationale. In addition to Mr Bemba submitting that the flaws of the trial judgment amounted to a grave and manifest miscarriage of justice, he also contested the excessive duration of proceedings in the main case, which resulted in his ten-year detention, as a ground for compensation under Article 85(3) of the Statute.
On an analysis of the Court’s interpretation regarding claims under Article 85(3) of the Statute (with specific reference to the Bemba Compensation Claim and Ngudjolo decision), two profound concerns arise—first, the narrow interpretation of the term ‘grave and manifest miscarriage of justice’ and second, the absence of relief for undergoing long years of detention during the course of a trial.
1. Narrow interpretation of the term ‘grave and manifest miscarriage of justice’
As mentioned above, the interpretation of the term ‘grave and manifest miscarriage of justice’, the basis on which a claim under Article 85(3) of the statute can succeed, is set at a very high threshold, with certain events such as prolonged corruption and want of impartiality meeting this threshold, whereas the violation of certain fair trial rights is omitted from its ambit. Since these criteria presuppose a serious and exceptional violation, the high standard of interpretation accorded to this term makes its active application to claims nonexistent. Although, the intention of the drafters as well as the courts to require such a high threshold is justified—probably with the intention of not giving the benefit of compensation to frivolous claims—it is undeniable that such a high benchmark has resulted in this provision not being applied in cases that do require its application. It is to be noted that the term ‘grave and manifest miscarriage of justice’ has been accorded no definition and the drafters of the Statute purported it to be construed in a narrow and restricted manner. It is also to be noted that at the time of adoption of the article certain delegations found the wording of the provision to be restrictive and expressed the need for ‘an unfettered right of compensation’ to an acquitted person. As a consequence, the grammatical definition of the term will not be sufficient to further the positive application of the provision. Only a more flexible interpretation of the provision by courts would, perhaps, result in drawing its benefits.
2. Absence of recourse to an acquitted person for undergoing long years of detention during the course of a trial
The Court in Mr Bemba’s compensation claim noted that due to the narrow interpretation of the term ‘grave and manifest miscarriage of justice’, the right of an acquitted person, who underwent detention during the course of proceedings, to claim compensation for such detention is also necessarily restricted. Thus, it can be inferred that the narrow interpretation of ‘grave and manifest miscarriage of justice’ inadvertently gives rise to the concern that victims of non-expeditious trials, who face detention as a consequence, have a feeble ground to claim compensation.
The court in the above decision noted that ten years spent in detention can be classified as ‘significant’ and could even amount to a violation of the fundamental right to an expeditious trial under many legal systems. The court admitted that the absence of statutory provisions to provide compensation in such situations was a grey area and accordingly urged state parties to address these concerns through a review of the Statute. Interestingly, the Court, early on, in the same decision observed that Article 85 of the Statute was enacted with the purpose of providing recourse of compensation to an accused or suspect for violation of their fundamental fair trial rights (this includes the right to an expeditious trial). With due respect, the Court seems to have failed to take into consideration the possibility that a person may be entitled to compensation, despite being acquitted in a subsequent decision, due to the fact that there had been a violation of fundamental rights while they were being tried as a suspect. This contradiction whereby, on the one hand, the court claims that Article 85 is to be used in situations of violation of fundamental rights and, on the other, it claims lack of jurisdiction to provide compensation to an acquitted person who has undergone significant detention during trial is a discrepancy that needs to be addressed.
Conclusion
These concerns highlight the need for statutory and, more importantly, judicial reforms in the interpretation of Article 85(3) of the Rome Statute. Although Article 85(3) does not provide an acquitted person the ‘right to compensation’ and the decision to provide compensation rests upon the discretion of the Court, such discretion needs to be exercised in a manner whereby the violation of fundamental fair trial rights (specifically, cases of long years of detention due to non-expeditious trial) of an acquitted person do not go unnoticed. The only possible solution to cease the sporadic use of this provision would be for the courts to accord a broad and flexible interpretation to Article 85(3) of the Statute. The Rome Statute asserts the uniqueness of Article 85(3). Nevertheless, if the significantly restricted manner in which this provision is being used persists, it may very well result in this provision becoming a dead letter.
Poorna Poovamma K.M. is a third-year law student at Gujarat National Law University, India, interested in Public International Law.
Engaging article. Brevity of expression and clarity of thought is commendable.