The right to reparation, including financial compensation, is fundamental for victims of international human rights and humanitarian law violations. Yet, victims still face significant challenges in securing meaningful reparation. One of the primary challenges lies in the absence of effective mechanisms to hold perpetrators financially accountable for the harm they have inflicted.
The International Criminal Court (ICC) plays a crucial role in addressing this gap through its asset recovery powers. Under the Rome Statute, the Court can request the cooperation of States Parties to recover assets from individuals accused of international crimes, even when those assets are not directly linked to the alleged crimes. This mechanism offers a potential source of reparation for victims and serves as a deterrent to perpetrators, especially when financial motivations drive their criminal actions.
The ICC’s ongoing investigation into Russia’s invasion of Ukraine highlights the significance of the Court’s asset recovery powers. With billions of dollars in Russian assets frozen globally as a result of sanctions in response to Russia’s aggression, the Court may have a unique opportunity to use some of these resources for victim reparation. However, challenges remain, as many States Parties lack the domestic legal frameworks necessary to effectively implement the Court’s asset recovery requests, raising concerns about safeguarding victims’ right to reparation, while balancing the rights of the accused.
This article explores the ICC’s role in asset recovery, the challenges States Parties face in meeting their obligations under the Rome Statute, and the implications for victims’ access to reparation. It is based on the September 2024 report from REDRESS (where I work), Financial Accountability at the International Criminal Court, which includes detailed country-specific recommendations in its annexures.
The ICC’s Asset Recovery Powers
Under Part 9 of the Rome Statute (Articles 86 to 102), States Parties are required to cooperate with ICC requests, including those to identify, trace, seize, and freeze assets under Article 93(1)(k). According to the (Article 2(f)), “freezing” or “seizure” refers to the temporary prohibition of transferring or assuming temporary custody of property based on a court order.
Such cooperation can be requested at various stages of the proceedings:
a) During investigations by the Office of the Prosecutor (OTP), under Article 54(2(a));
b) After the issuance of a warrant or summons by the Pre-Trial Chamber to impose protective measures over assets as per Article 57(3)(e); and
c) Post-conviction by the Trial Chamber to order reparations to victims, including through the Trust Fund for Victims (Article 75(2)), impose fines, order forfeiture of assets derived directly or indirect from the crime (Rome Statute, Article 77(2)), or mandate contributions to cover legal costs for indigent defendants (Rule 21(5) ICC Rules of Procedure and Evidence).
States Parties must fully cooperate with these requests and establish the necessary domestic procedures to facilitate this cooperation (Articles 86 and 88).
As of 2022, the ICC is known to have made at least seven requests for asset recovery cooperation, including cases involving: Thomas Lubanga Dyilo, Germain Katanga, Jean-Pierre Bemba Gombo, Uhuru Muigai Kenyatta and others, and Aimé Kilolo Musamba. Additionally, the ICC also reportedly requested assistance from Libya, State Parties, and five U.N. Security Council non-State Parties to identify, trace, seize, and freeze assets of Saif Al-Islam Gaddafi and Abdullah Al-Senussi.
Timely Coordination with ICC Asset Recovery Requests
Despite the legal obligation to cooperate under the Rome Statute, States Parties face challenges in effectively responding to ICC asset recovery requests due to gaps in domestic laws. A significant issue is the lack of clear timelines for responding to such requests and the absence of designated authorities to oversee their implementation. This can lead to delays, especially in already overstretched criminal justice systems, increasing the risk that assets may be liquidated or hidden before action can be taken. The Rome Statute itself does not set deadlines for responses, and its enforcement options for non-compliance are limited – failure to cooperate may result a finding of non-cooperation or a referral to the Assembly of State Parties of the U.N. Security Council (Article 47).
Some States Parties, such as Switzerland, provide a more efficient model for domestic coordination: The Central Office, established within the Swiss Federal Office of Justice, acts as the central channel for communicating with the ICC and implementing cooperation requests (Article 3). In contrast, countries like Portugal have a more cumbersome process: ICC requests are passed through multiple stages – from the Ministry of Foreign Affairs to the Public Prosecutor’s Office, and then to the Minister of Justice for a non-binding decision on admissibility (Article 21). If deemed admissible, the request is sent to the Department of Judicial Cooperation and International Relations in the Public Prosecutor’s Office for implementation. This multilayered process can cause delays and complicate compliance.
Recommendation. To improve speed and efficiency, States Parties should establish clear procedures for timely responses to ICC asset recovery request. This includes setting specific timeframes for implementation and designating a strong coordinating authority to determine the admissibility and execution of such requests at all stages. Such an authority should also facilitate the Court’s access to relevant national entities, such as financial investigation units and asset recovery offices, ensuring smoother cooperation.
Nexus Between Seizure of Frozen assets and the Commission of a Crime
Another challenge in implementing ICC asset recovery requests is the inconsistency between the Court’s interpretation and that of States Parties regarding whether assets seized or frozen at the ICC’s request must be directly linked to the crime in question.
Article 93(1)(k) of the Rome Statute obliges States Parties to comply with ICC requests for the “identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture.” In the Kenyatta Implementation Decision (para. 12 to 15) and Kilolo Anti-freezing application (para. 17) the Trial Chamber clarified that “property and assets” should be considered separately from “instrumentalities of crimes.” This means that assets do not need to be directly linked to criminal activity to fall within the scope of ICC requests.
However, many domestic legal frameworks require a more direct connection between the assets and the crime under investigation before they can be seized or frozen, missing the opportunity to act promptly during the initial investigation by the OTP or the Court in order to seize assets that might not be directly linked to the crimes under investigation. For example, both Switzerland (Article 30(j)) and the UK (Schedule 6), appear to restrict the freezing or seizing of assets to cases where an ICC forfeiture order has been made or there are reasonable grounds to expect one. Under Article 77 of the Rome Statute, an ICC forfeiture order applies only to assets derived directly or indirectly from the crime.
In contrast, some States Parties, like France and Germany, align more closely with the ICCs broader interpretation. Thus, French law permits the seizure of all assets from individuals suspected or convicted of war crimes, crimes against humanity or genocide regardless of their direct connection to the crime (Article 213-1). Similarly, German law allows for the freezing or seizure of assets before an ICC conviction if they are evidence or proceeds of the alleged crime, and after conviction, any of the perpetrator’s assets in Germany can be targeted (Section 52).
These broader approaches offer greater opportunities for victims to recover a larger share of assets for reparations and help preserve assets that may later be found to be linked to a crime.
Recommendation. States Parties should clarify in their domestic laws that no additional link between the assets and the crime is required for asset seizure or freezing in response to ICC requests. State Parties should comply with ICC requests to take conservatory measures on the entire patrimony of the accused, irrespective of a direct connection to the crime under investigation.
Challenges in Asset Management and the Need for Clear Guidelines
Once assets are frozen or seized at the ICC’s request, their proper management becomes crucial for preserving value and ensuring that victims are not deprived of potential reparations due to administrative inefficiencies. As noted by the U.N. Office of Drugs and Crime on the effective management and disposal of seized and confiscated assets notes: “Failure to take adequate care of an asset to ensure that its economic value is preserved during this phase may well frustrate efforts to compensate victims for their loss and undermine efforts to repair the harm done by criminal conduct” (page 11). Mismanagement may also negatively affect defendants who are ultimately acquitted.
However, the Rome Statute provides no specific guidance on asset management or remedies for management. In the Bemba Compensation Decision, the ICC suggested that asset management is the responsibility of the State holding the assets, not the Court (para. 57). The ICC Registry has since reiterated that States are responsible for managing seized assets (para. 31 to 33), while the Court confirmed that it does not have jurisdiction over disputes arising from mismanagement or devaluation of assets (Bemba Compensation Decision, para. 58).
This gap is compounded by the lack of adequate regulations in many States Parties concerning the management of assets seized or frozen under ICC requests. For instance, while countries like France, Spain,Belgium have central agencies to manage assets, these agencies often face limitations, such as excluding certain asset types (e.g. frozen funds in bank accounts in France, which remain the responsibility of the relevant bank) or lacking formal guidance on how these agencies should carry out their duties (such as in Belgium (page 8)).
One of the more effective models of centralized asset management appears to be Spain’s Asset Recovery and Management Office, which has introduced clear operational guidelines for asset management, allowing the authority for example to use protection methods and to destroy the assets under certain circumstances, provided that the relevant judicial authority previously authorized it (Article 39 and 40). Additionally, Switzerland’s legislation ensures that seized assets will remain seized until they are transferred to the ICC or until the Court no longer requests them (Article 41).
Further, though domestic frameworks often account for potential harm to defendants from asset mismanagement or depreciation, they typically lack provisions for victims of ICC crimes to claim remedies for harms they may suffer due to poor asset management.
Recommendation. States Parties should introduce comprehensive asset management rules, including mechanisms for recourse in cases of mismanagement and systems for monitoring asset status. Victims should have remedies available for harm caused by mishandling of assets, and all seized assets, including frozen funds in bank accounts, must be adequately managed by a centralized authority.
Forfeiture of Assets Following an ICC Order
Finally, inconsistencies persist between the ICC’s position and domestic legal systems regarding the connection between forfeited assets and the crime in ICC proceedings, as well as the use of these assets to fund post-conviction fines, reparation orders, and legal costs.
While asset forfeiture in the full sense (i.e. permanent removal of assets) generally occurs after conviction, as discussed above, the Rome Statute requires States Parties to freeze or seize assets before conviction to ensure they are available for eventual forfeiture or reparations. Assets subject to freezing and seizing do not need to be directly linked to the crime. This suggests that assets broader than the proceeds of crime may also be forfeited as a penalty or alternatively used to fund reparations for victims, fines, and legal costs.
However, domestic legal frameworks ordinarily limit the circumstances in which forfeiture is available. For example, while Germany (Part 4) and Switzerland (Article 41), explicitly permit the use of forfeited assets for fines and reparation orders, other countries, like Italy (Article 21)) and Spain (Article 127(1)), have unclear policies on whether forfeited assets can be used for reparation orders. Spain also appears to restrict forfeiture measures to assets connected with a crime. Additionally, enforcing ICC forfeiture orders can be complex: France (Article 627-16), Belgium (Article 40), and the UK (Regulation 4) all require either registration or recognition proceedings (meaning that a domestic court must first declare the order enforceable) while Portugal appears to rely on procedures for executing foreign judgments, which may be unsuitable for ICC requests.
On the other hand, some States Parties have adopted more flexible approaches to asset forfeiture. For example, France allows for a wide range of assets to be forfeited, including as a penalty, or to fund fines or reparation orders.
Furthermore, Spain, Italy, Germany, and Switzerland have streamlined procedures for enforcing ICC forfeiture orders without the need for recognition proceedings, thereby reducing procedural delays. Italy also has a clear procedure for transferring forfeited assets to the ICC, with assets being allocated to the Italian State Budget and then transferred by Ministerial Decree to the ICC (Article 21(5)).
Recommendation. To enhance compliance with the ICC’s asset recovery mandate and improve the enforcement of forfeiture orders, States Parties should amend their legal frameworks to allow for the forfeiture of assets not only in the context of post-conviction penalties but for the purpose of Reparation Orders, fines, and payment of legal fees.
They should also align their domestic frameworks with the ICC’s broad interpretation of forfeiture, as seen in recent decisions, including the Kenyatta Implementation Decision. Lastly, States must eliminate procedural hurdles in enforcing ICC forfeiture orders, including by creating efficient processes for transferring forfeited assets to the ICC.
Conclusion
The ICC has the potential to become a significant player in asset recovery and victim reparations. However, progress is hindered by challenges in the domestic implementation of ICC asset recovery requests. To unlock this potential, States Parties must strengthen their legal frameworks to ensure timely and effective execution of the ICC’s asset recovery requests. This is critical for fulfilling their obligations under the Rome Statute and securing fair reparations for victims.
The ICC’s reparation efforts are currently facing a significant funding gap, relying heavily on voluntary contributions from States, organizations, and private donors— often requiring political goodwill. The Ongwen case illustrates this shortcoming: despite the pledge launched by the Trust Fund for Victims to raise the €52.4 million needed to comply with the award issued by the Chamber to provide reparation to victims of Ugandan warlord Dominic Ongwen, no country has responded to the pledge so far.
While asset recovery may not always be available – especially when defendants are indigent – it can enhance the ICC’s ability to deliver meaningful reparations. To address this, both the ICC and domestic authorities must improve their capacity for financial investigations, targeting illicit proceeds linked to international crimes. Yet, a disconnect between agencies handling international crimes and those overseeing illicit financial assets still pose barriers to effective recovery. Bridging this divide is crucial for ensuring timely reparations.
The Ljubljana-Hague Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes against Humanity, War Crimes and Other International Crimes offers a valuable opportunity in this context for States Parties to deepen cooperation on ICC asset recovery. This Convention could reinforce the ICC’s framework for Inter-State cooperation, yet its impact remains limited as many States have yet to sign and/or ratify it. A key recommendation is therefore for States Parties to prioritize ratifying the Convention, strengthening their collective commitment to international justice.
An integrated approach to asset recovery and prosecution of international crimes is essential for ensuring victims receive the reparations they deserve and that perpetrators are held fully accountable. This requires stronger collaboration between civil society, domestic agencies, and international bodies to close gaps in legal frameworks and ensure comprehensive, meaningful justice.