Asset preservation, state cooperation and the international criminal court

Despite their centrality to the International Criminal Court’s reparations and legal assistance schemes, the Court’s powers to identify, trace, freeze and seize accused persons’ assets have largely been neglected by academics, practitioners and the Court. Jean-Pierre Bemba Gombo’s recent compensation application brought the consequences of this neglect sharply into focus. Seeking to address this lacuna in existing scholarship, this article views the Court’s jurisprudence and practice through the prism of Prosecutor v Bemba, applies the lenses of both rationalist and constructivist theory to outline the Court’s asset preservation regime and explores a range of reforms to strengthen and improve its effectiveness. Rationalist insights support the conventional view that recalcitrant and rejectionist states pose the greatest threat to the effectiveness of the Court’s asset preservation efforts. Accordingly, this analysis supports those who argue that stronger enforcement measures, likely involving greater cooperation with the United Nations Security Council, are desirable. Constructivist analysis, however, directs attention to matters of identity and role-attribution, which this article argues can both explain and support a more nuanced, iterative understanding of state cooperation and the relationship between the Court and states parties which may assist in addressing the myriad technical and jurisprudential problems which have plagued the scheme.