UvA-DARE (Digital Academic Repository) Asset freezing at the International Criminal Court and the United Nations Security Council A legal protection perspective Birkett, D.J. Publication date 2021 Document Version Other version License Other Link to publication Citation for published version (APA): Birkett, D. J. (2021). Asset freezing at the International Criminal Court and the United Nations Security Council: A legal protection perspective. Eleven International Publishing. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:02 Oct 2021 Daley J. Birkett ASSET FREEZING AT THE INTERNATIONAL CRIMINAL COURT AND Birkett THE UNITED NATIONS SECURITY COUNCIL ASSET FREEZING AT THE INTERNATIONAL CRIMINAL THE INTERNATIONAL ASSET FREEZING AT A Legal Protection Perspective Asset Freezing at the International Criminal Court and the United Nations Security Council Published, sold and distributed by Eleven International Publishing P.O. 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Printed in the Netherlands Asset Freezing at the International Criminal Court and the United Nations Security Council: A Legal Protection Perspective ACADEMISCH PROEFSCHRIFT ter verkrijging van de graad van doctor aan de Universiteit van Amsterdam op gezag van de Rector Magnificus prof. dr. ir. K.I.J. Maex ten overstaan van een door het College voor Promoties ingestelde commissie, in het openbaar te verdedigen in de Agnietenkapel op vrijdag 19 februari 2021, te 16:00 uur door Daley Jon Birkett geboren te Whitehaven Promotor: prof. dr. mr. G.K. Sluiter Universiteit van Amsterdam Overige leden: prof. dr. A. Ciampi University of Verona prof. dr. Y.M. Donders Universiteit van Amsterdam prof. dr. L.J. van den Herik Universiteit Leiden prof. mr. dr. H.G. van der Wilt Universiteit van Amsterdam dr. S.V. Vasiliev Universiteit van Amsterdam Faculteit der Rechtsgeleerdheid Acknowledgments This thesis is the product of four years’ research conducted across two continents. I began my Ph.D. project in September 2016 at the Faculty of Law of The Chinese University of Hong Kong under the supervision of Professor Nina Jørgensen (now at the University of Southampton) and Professor Gregory Gordon. Their support and thoughtful feedback on my writing during the early phase of the project was invaluable and I wish to thank them for the significant part they played in my Ph.D. journey. I would also like to acknowledge the financial support I received from CUHK Law until December 2017 in the form of a generous scholarship and grants to present my research at a number of conferences. It was in 2018 that I relocated to Europe and joined the doctoral programme at the Faculty of Law of the University of Amsterdam, where I continued my Ph.D. research under the supervision of Professor Göran Sluiter and (until July 2020) Professor Denis Abels. I can hardly express the depth of my gratitude to Göran and Denis for giving so readily of their time (not least during a global pandemic) to read and offer meticulous and constructively critical feedback on my work. Coupled with the gracious hospitality they extended to me whenever I visited Amsterdam and their kind encouragement and guidance from our first meeting, I could not have asked for a more supportive environment in which to complete my Ph.D. project. I doubt that I would have completed this marathon without them. As an external Ph.D. candidate at the University of Amsterdam, I drafted the majority of this thesis at the University of Kiel and at Northumbria University. I would therefore like to gratefully acknowledge the support of the Walther Schücking Institute for International Law and Northumbria Law School. Thank you for allowing me the time to complete my Ph.D. project alongside my research, teaching, and administrative responsibilities. I also wish to thank the judges to whom I reported and the colleagues and interns with whom I worked at the Extraordinary Chambers in the Courts of Cambodia and at the International Criminal Court. Judge Anita Ušacka, Judge Agnieszka Klonowiecka-Milart, Judge Nihal Jayasinghe, and Judge Florence Mumba – thank you for affording me the opportunity to serve you. And to my colleagues, especially Volker Nerlich, Franziska Eckelmans, Paolo Lobba, Sheila Paylan, Anthony Jackson, Amy Barber, and Gabrielle Wellemans – thank you for your wise counsel and warm friendship during my time in practice, a period that doubtlessly influenced this thesis and, indeed, my career. While it was in The Hague and in Phnom Penh that international criminal justice became my vocation, it was during my time in Durham that I was first exposed to research. Thank you to Michael Bohlander for inspiring me to enter this world and for your mentorship as I continue to navigate it. v Acknowledgments I am also grateful to the colleagues with whom I shared an office, a corridor, or a beverage during the past four years in Hong Kong, Kiel, Newcastle, and Amsterdam. Luke Marsh, Stuart Hargreaves, Samuli Seppänen, Dini Sejko, Becky Leung, Michael Cheng, Xu Qian, Angela Kim, Kehinde Olaoye, Richard Zhang, Jenny Chan, Ivy Chen, Chao Wang, Sarah Imani, Wiebke Staff, Jens Theilen, Felix Bieker, Felix Telschow, Bleuenn Guilloux, Erik van Doorn, Liv Christiansen, Nikolaus Koch, Theresa Kändler, Cathi Uekermann, David Schenk, Mareike Nürnberg, and Lilo Rösch – thank you for the downtime. Several chapters of this thesis have been, or will soon be, published in revised form, one as a chapter in an edited collection and four chapters as articles in peer-reviewed journals. I would accordingly like to thank the reviewers engaged by Cambridge University Press, the Leiden Journal of International Law, the Journal of International Criminal Justice, the Human Rights Law Review, and the International Criminal Law Review for their critical comments that helped to shape this thesis. Thanks are also due to colleagues who offered their time to discuss, read, and provide feedback on the ideas contained in these chapters. I wish to thank Michael Ramsden, Russell Hopkins, Mohamed Badar, Upendra Acharya, Buhm-Suk Baek, Ethan Hee-Seok Shin, and Birju Kotecha, whose support in this regard greatly augmented the quality of the published components of my Ph.D. research. Thanks also to Elinor Fry for reviewing the Dutch summary of this thesis. Ontzettend bedankt! Finally, I would like to thank my friends and family, especially my wife, Abigail, and my two daughters, for their patience and support throughout the Ph.D. process. This journey was as much yours as it was mine. Daley J. Birkett Newbrough, 5 November 2020 vi Table of Contents Table of Instruments xi Table of Cases xvii 1 Introduction 1 1.1 Framing the issue 1 1.2 Developing the research question 1 1.3 Methodology 3 1.4 Roadmap 5 2 Asset Freezing: Theory, Objects and Purposes 9 2.1 Introduction 9 2.2 Asset Freezing and Confiscation 9 2.2.1 Defining the Parameters 10 2.2.1.1 Conviction-based confiscation 12 2.2.1.2 Non-conviction-based confiscation 15 2.2.2 Justifying the Confiscation and Freezing of Assets 16 2.2.2.1 Punitive 17 2.2.2.2 Preventive 18 2.2.2.3 Restorative 19 2.2.2.4 Other 19 2.3 Situating ICC- and UNSC-Requested Asset Freezing Measures 20 2.4 Conclusion 24 3 Coexistent but Uncoordinated – Asset Freezing Measures at the ICC and the UNSC 25 3.1 Introduction 25 3.2 Modalities 26 3.3 Shared Goals? 28 3.4 Strengthening Cooperation 32 3.5 In Search of Coordination 36 3.5.1 Libya: Coexistent and Coordinated? 37 3.5.2 Coexistent but Uncoordinated 40 3.5.2.1 Democratic Republic of the Congo 40 3.5.2.2 Côte d’Ivoire 51 vii Table of Contents 3.5.2.3 Sudan 55 3.5.2.4 Central African Republic 57 3.5.2.5 Mali 61 3.5.3 Neither Coexistent nor Coordinated 63 3.5.3.1 Uganda 63 3.5.3.2 Kenya 64 3.6 Conclusion 65 4 Recovering Assets at ICTs – Fines, Forfeiture and Orders for Reparations 67 4.1