2.1. Establishment, Investments and Governance

Libyan financial entities were largely marginalised in international markets for over a decade, commencing in 1992, as a result of sanctions imposed by the UNSC following the destruction of Pan Am flight 103 over Lockerbie (Scotland), and the Union de Transports Aériens flight 772 over Niger.Footnote ⁵ After the lifting of these restrictions in 2003,Footnote ⁶ the then unshackled bodies became far more active in investing in global markets, with the Libyan General People's Congress establishing a dedicated SWF in 2006.Footnote ⁷ Under the LIA's 2010 Constitution, the fund has three principal goals: (i) the development and diversification of the national economy; (ii) to secure resources for future generations; and (iii) fiscal stability.Footnote ⁸ In order to achieve these objectives, the LIA (and its subsidiaries) have made significant financial investments across a variety of industries, with most investments in Europe, the United States and Africa.

Chief among its European investment destinations are the UK and Italy. For example, in February 2011, shortly before its listing by the UNSC, the LIA owned a 3 per cent stake in Pearson Plc, which, until November 2015, owned The Financial Times.Footnote ⁹ As of September 2010 the LIA also held equities in a number of prominent British companies, including Tesco Plc, Standard Chartered Plc and BP Plc,Footnote ¹⁰ as well as a small stake (0.01 per cent) in the Royal Bank of Scotland Plc.Footnote ¹¹ At the same time, the LIA had also acquired a portfolio of luxury real estate in LondonFootnote ¹² and was active in acquiring UK corporate and government bonds.Footnote ¹³ Libyan financial entities have also made significant investments in Italian companies, a strategy that can be attributed to historical, economic and political considerations.Footnote ¹⁴ For instance, in March 2011 (that is, the time the UNSC added the LIA to the sanctions list), it was reported that the LIA held a 2.5 per cent stake in the Italian financial group UniCredit SpA (with a 5 per cent stake in the same institution owned by the Central Bank of Libya, another entity listed by the UNSC at the same time, and for the same reason,Footnote ¹⁵ as the LIA).Footnote ¹⁶ Other Italian concerns in which the Libyan SWF and its subsidiaries had invested in 2011 included Juventus Football Club SpA;Footnote ¹⁷ the aerospace, defence and security company Finmeccanica SpA,Footnote ¹⁸ and the multinational energy corporation Eni SpA.Footnote ¹⁹

The fund's governance structure is also enshrined in Libyan law and comprises: (i) a Board of Trustees, which consists of the Prime Minister (serving as Chairman); the Ministers for Economy, Finance, Planning, and Trade; the Governor of the Central Bank of Libya; and several experts; and (ii) a Board of Directors, whose six-strong membership is selected by the Board of Trustees.Footnote ²⁰ It also falls upon the Board of Trustees to nominate the CEO of the fund.Footnote ²¹ As one might expect under such a framework, the LIA and its subsidiaries allegedly had close ties with the Gaddafi-controlled Libyan government at the time of their listing, with a number of regime loyalists (that is, at the time of the civil war if not since the establishment of the fund) reportedly playing prominent roles in the decision-making processes of the SWFs.Footnote ²²

2.2. The UNSC-Requested Asset Freeze

The origins of the Libyan civil war can be traced to protests in response to the arrest of human rights lawyer and activist, Fathi Tarbil.Footnote ²³ These protests, which started in Libya's second city, Benghazi, in February 2011, quickly escalated and spread across Libya, resulting in hundreds of deaths and injuries.Footnote ²⁴ Having expressed regret at the violence and loss of civilian lives in a press statement four days beforehand,Footnote ²⁵ on 26 February 2011, the UNSC unanimously adopted Resolution 1970,Footnote ²⁶ in which it decided that all UN member states must freeze the assets of six individuals, namely the then Libyan leader, Muammar Gaddafi, and five of his children.Footnote ²⁷

On 17 March 2011, responding to an escalation in hostilities, the UN organ adopted a second resolution on the situation. UNSC Resolution 1973 extended the asset-freeze measures adopted in Resolution 1970, adding five entities to the list of natural and legal persons subject to the freeze mandated by Resolution 1970.Footnote ²⁸ Besides including the LIA – the first and, at the time of writing, the only time that the UNSC has designated a SWF on a sanctions list – the UNSC also listed the Central Bank of Libya, the Libyan Foreign Bank, the Libyan Africa Investment Portfolio, and the Libyan National Oil Corporation.Footnote ²⁹ The reason for listing these five entities, according to Resolution 1973, is that the each was ‘[u]nder [the] control of Muammar Gadhafi and his family, and [a] potential source of funding for his regime’,Footnote ³⁰ which remained engaged in a bloody civil war with opposition forces at the time the measures were adopted.

UNSC Resolution 1973 had also established a ‘No Fly Zone’, that is, a ban on flights in the then Libyan Arab Jamahiriya airspace.Footnote ³¹ This No Fly Zone – which was coupled with an authorisation to states ‘to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab JamahiriyaFootnote ³² – in practice helped to turn the tide of the war against the pro-Gaddafi forces in mid-August 2011.Footnote ³³ Sirte, one of the ‘last strongholds of the regime’,Footnote ³⁴ was taken by rebel troops on 20 October 2011 and Gaddafi was killed on the same day.Footnote ³⁵ In the meantime, the UNSC adopted a further resolution related to the asset freeze against the LIA. UNSC Resolution 2009, adopted on 16 September 2011,Footnote ³⁶ represented an attempt to partially ease the restrictions placed upon the LIA and other entities by the measures adopted pursuant to Resolution 1973.Footnote ³⁷ With regard to the LIA's assets, the UNSC decided as follows:Footnote ³⁸

However, although interpreted by certain domestic courts for the benefit of the LIA, as will be demonstrated in Section 4, the partial easing of the freezing measures has failed to relieve the practical constraints imposed on the management of the Libyan SWF.

2.3. The ICC-Requested Asset Freeze

It was also in Resolution 1970 that the UNSC opted ‘to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court’,Footnote ³⁹ a process pursuant to which the ICC Prosecutor swiftly opened an investigation into alleged crimes and, on 27 June 2011, successfully applied to the Pre-Trial Chamber for arrest warrants for Muammar Gaddafi,Footnote ⁴⁰ his son and assumed heir Saif al-Islam Gaddafi,Footnote ⁴¹ and his Chief of Military Intelligence Abdullah al-Senussi.Footnote ⁴² With the proceedings against Muammar Gaddafi having been terminated following his death in November 2011, the ICC Prosecutor explicitly confirmed to the UNSC that he had requested several states to freeze assets belonging to the two surviving accused persons in the following terms:Footnote ⁴³

As the Prosecutor's statement indicates, though the UNSC and ICC had each asked a number of states to freeze assets belonging to the same individuals, this is not to say that the measures serve precisely the same purpose(s).Footnote ⁴⁴ According to Giorgio Sacerdoti and Pia Acconci:Footnote ⁴⁵

To the latter, one could add further purposes, including the enforcement of orders of forfeiture or fines, if imposed upon conviction, and facilitating the arrest and surrender of the accused.Footnote ⁴⁶

3.1. The European Union

It should be noted at the outset that the EU, unlike its member states, all of which are member states of the UN, is not subject to the direct obligation under Article 25 of the Charter of the United Nations (UN Charter) ‘to accept and carry out the decisions of the Security Council’.Footnote ⁴⁹ Daniel Bethlehem expresses the following view: ‘If the EU has an obligation to act at all in relation to such measures, it is a derivative obligation based on the obligation of individual EU Member States under the Charter in respect of UNSC decisions and the transfer of competence in respect of such matters from the Member States to the Community’.Footnote ⁵⁰ That said, the EU has nevertheless been granted the power to impose sanctions against states, non-state actors and both natural and legal persons by the Treaty on the Functioning of the European Union (TFEU) in the context of its Common Foreign and Security Policy (CFSP).Footnote ⁵¹ According to Article 215 TFEU:Footnote ⁵²

Panos Koutrakos categorises the internal process of adopting sanctions on the EU plane under this provision as ‘a two-step procedure: first, the Council adopts a CFSP Decision in which it expresses its wish for relations with a third country to be interrupted or reduced; secondly, the Council adopts a Regulation in which it sets out in detail the rules governing the sanctions’.Footnote ⁵³ When imposing sanctions against individuals, entities or groups, rather than states – also known as ‘targeted sanctions’Footnote ⁵⁴ – another legal basis for EU action is found in Article 75 TFEU.Footnote ⁵⁵

3.2. United Kingdom

Until 2020 the UK implemented UN sanctions in its legal order through domestic legislative action and EU law.Footnote ⁵⁶ As to the former, both primary legislation (statutes adopted by the UK Parliament) and delegated legislation, which includes statutory instruments made by Ministers deriving their authority to so act from primary legislation or by the Crown through Orders in Council,Footnote ⁵⁷ have been used to implement UN sanctions in UK law. Such Orders in Council can be made pursuant to the United Nations Act 1946, a piece of primary legislation designed to allow effect to be given in the UK legal order for certain provisions of the UN Charter. Section 1(1) of the United Nations Act 1946 provides as follows:Footnote ⁵⁸

According to Sir Christopher Greenwood CMG QC, ‘the necessity for the United Nations Act stems from the rule of [UK] law which precludes unincorporated treaties from being enforced in the [UK] courts’.Footnote ⁵⁹ As the UN Charter has not been implemented into UK law, it cannot be directly enforced before courts in the UK, but the UK is still bound to give effect to decisions of the UNSC in line with Article 25 of the UN Charter.Footnote ⁶⁰

Greenwood identifies a series of additional pieces of legislation used to give effect to UN sanctions in the UK legal order. These include the Import of Goods (Control) Order 1954 and the Export Control Act 2002, which regulate the import of goods into and export of goods from the UK.Footnote ⁶¹ A final piece of legislation used to give effect to UN sanctions in the UK legal order, and potentially relevant for the subject-matter under examination in the present article, is the Emergency Laws (Re-enactments and Repeals) Act 1964, section 2(1) of which permits the UK Treasury to freeze foreign assets in the UK under certain conditions.Footnote ⁶² As Greenwood makes clear, however, these pieces of legislation, unlike the United Nations Act 1946, are not designed explicitly to implement UN sanctions in the UK, but have been used to do so.Footnote ⁶³

For as long as the UK was a member state of the EU,Footnote ⁶⁴ EU law, more broadly, as well as in specific cases of giving effect to sanctions determined by the UNSC, was implemented in the UK through legislation passed pursuant to section 2(2) of the European Communities Act 1972.Footnote ⁶⁵ This legislation was, like legislation adopted pursuant to the United Nations Act 1946, enacted through Orders in Council, although it also took other forms, namely orders, rules, regulations and schemes.Footnote ⁶⁶

The UK implemented UNSC sanctions adopted in relation to Libya by way of an Order in Council, the Libya (Financial Sanctions) Order 2011,Footnote ⁶⁷ pursuant to the United Nations Act 1946. At the same time, because the UK was a member of the EU when the latter adopted Regulation 204/2011, the UK also gave effect to the relevant EU legislation through the Libya (Asset-Freezing) Regulations 2011 of 3 March 2011.Footnote ⁶⁸ This statutory instrument was drafted by the UK Treasury in accordance with section 2(2) of the European Communities Act 1972. The sanctions against the six named individuals decided upon by the UNSC in Resolution 1970 were implemented in the EU legal order through Regulation No 204/2011 of 2 March 2011,Footnote ⁶⁹ which was later repealed and superseded by Regulation (EU) 2016/44 of 18 January 2016.Footnote ⁷⁰ The LIA was added to the list of sanctioned entities through Regulation (EU) No 360/2011,Footnote ⁷¹ while the partial lifting of the sanctions was given effect in the EU legal order by Regulation (EU) No 965/2011.Footnote ⁷² The freezing measures were therefore swiftly implemented by the responsible authorities in both the UK and the EU, thereby giving domestic and, in respect of the latter, supranational effect to the measures adopted by the UNSC.

3.3. Italy

Italy gives domestic effect to its general obligation to cooperate with the ICCFootnote ⁷³ as well as its duty to ‘ensure that there are procedures available under [its] national law for all of the forms of cooperation’ listed in Part IX of the ICC StatuteFootnote ⁷⁴ pursuant to Law 237 of 12 December 2012. Italy adopted this detailed piece of national implementing legislation more than 13 years after enacting legislation authorising ratification of the Court's constituent instrument.Footnote ⁷⁵ Article 1 of Law 237 of 12 December 2012 explicitly incorporates into the Italian legal order Italy's general obligation to cooperate with the ICC,Footnote ⁷⁶ while Article 2 stipulates that the task of handling such cooperation on Italy's behalf is the responsibility of the Minister of Justice.Footnote ⁷⁷

As far as the freezing of assets at the request of the ICC is concerned, Article 21 of Law 237 of 12 December 2012 provides, in relevant part: ‘The Court of Appeal of Rome shall, at the request of the Attorney General at the same court, execute the confiscation of profits, property or assets ordered by the International Criminal Court’.Footnote ⁷⁸

The remaining provisions regulate such issues as transmission of documents, offences against the administration of justice, and the enforcement of sentences of the ICC issued in Italy. Before the entry into force of this dedicated law, cooperation requests issued to Italy by the Court would have been processed together with requests for mutual legal assistance sent from other states, that is, under the relevant provisions of the Italian Code of Criminal Procedure.Footnote ⁷⁹

Although the ICC Prosecutor did not publicly nameFootnote ⁸⁰ the states to which the Court sent requests for cooperation, it has since come to light that Italy was among the recipients.Footnote ⁸¹ As Sacerdoti and Acconci keenly observe, because Italy's national implementing legislation had not entered into force at that time, the asset-freezing measures requested by the ICC must have been given effect in the Italian legal order in accordance with the Code of Criminal Procedure, the provisions of which regulate ‘cooperation with foreign penal authorities’ in general terms.Footnote ⁸²

4.1. At the International Level

On 21 March 2016, the then Permanent Representative of Libya to the UN, Ibrahim Dabbashi, sent a letter addressed to the President of the UNSC.Footnote ⁸³ In this letter Mr Dabbashi appealed to the UNSC to revise Resolutions 1970, 1973 and 2009 (that is, those perpetuating the partial asset freeze) to allow the LIA ‘to engage in fund management within the frozen accounts to prevent the further dissipation of LIA assets’.Footnote ⁸⁴ The rationale behind Ambassador Dabbashi's request was clear:Footnote ⁸⁵

Despite this, in our view, compelling and pragmatic appeal by the Libyan authorities, at the time of writing the majority of LIA assets remain frozen in accordance with Resolutions 1970, 1973 and 2009. This is because the LIA continues to be named on the list of sanctioned entities maintained by the Libya Sanctions Committee.Footnote ⁸⁶ This is also the case despite the fact that, in 2016, in acknowledging the letter sent by Ambassador Dabbashi, the UNSC:Footnote ⁸⁷

Successive Panels of Experts established by Resolution 1973 have also acknowledged concerns at the loss in value of LIA assets caused by the continued asset freeze. In 2016, the Panels of Experts drew the attention of the UNSC to the fact that all investments made by the LIA frozen in 2011 had then matured and were being held in cash by financial institutions outside Libya.Footnote ⁸⁸ As a consequence, the Panel observed that ‘[c]ash deposits accrue little, if any, interest, nor earnings that could be achieved from investment’.Footnote ⁸⁹ Such ‘rigidity of the … sanctions regime’ was also highlighted in the final report of the following Panels of Experts.Footnote ⁹⁰ This said, the Panel also noted that it could be problematic to revise the regime in view of the fund's divided management, referring to claims from two rival CEOs, one operating from the LIA office in La Valletta (Malta), and the other from the fund's Tripoli office.Footnote ⁹¹ Subsequent Panels of Experts have been even more explicit in cautioning against relaxing the restrictions. For example, according to the Panel report of March 2021:Footnote ⁹²

The question therefore remains as to how best to safeguard ‘the wealth of a nation’.Footnote ⁹³ On the one hand, to read reports in 2020 that the value of the LIA portfolio might have been worth $4.1 billion more had the UNSC not subjected the fund to sanctions for almost a decade might reasonably indicate that an easing of the measures is (long) overdue.Footnote ⁹⁴ On the other hand, it could equally be argued that governance reform must precede any such steps in this direction, not least in view of the SWF's long-disputed leadership.Footnote ⁹⁵ This uncertainty, however, has not prevented officials claiming to act on the part of the LIA from bringing proceedings on behalf of the fund in national courts in order to ease the asset-freeze measures.

It is important to note that the individuals and entities on the 1970 Sanctions List have recourse to a delisting procedure.Footnote ⁹⁶ However, the LIA has failed to submit a delisting request despite having had the opportunity to do so since the Focal Point for Delisting was established by the UNSC in December 2006.Footnote ⁹⁷ In sum, the one notable challenge to the sanctions imposed with regard to the LIA assets made at the UN level by Ambassador Dabbashi failed to result in any alleviation thereof. The large part of the assets held by the LIA in March 2011 remain frozen pursuant to measures intended to avoid their abuse by the family of the then Libyan leader Muammar Gaddafi, whose regime was unseated following his death more than ten years ago. The limited success of the LIA in fighting the two freezes has instead come from challenging their implementation by states in domestic courts. As Antonios Tzanakopoulos observes, domestic laws implementing UNSC sanctions ‘remain – at least in the first instance – open to challenge before domestic courts, much like any other domestic administrative act’.Footnote ⁹⁸ It is these courts, the operation of which is much less constrained by international politics and its related bureaucratic procedures, that not only offer additional fora in which entities and individuals can challenge asset freezes requested by the UNSC or the ICC, but would also appear to provide petitioners with a greater chance of securing a favourable result.

4.2. In the Courts of England and Wales

The application of the UN sanctions against the LIA in the UK legal order came to the fore in a case between the fund and Mr Glenn Maud, to whose company, Propinvest Group Ltd, the LIA had loaned 12.5 million euros, a sum which, with interest accrued, amounted to more than £17.5 million at the time of the proceedings.Footnote ⁹⁹ In short, the LIA sought to recoup this debt by issuing a statutory demand against Mr Maud.Footnote ¹⁰⁰ The dispute between the parties did not centre on any denial on the part of Mr Maud that he had entered into an agreement with the LIA and that his company had defaulted on the payment; on the contrary, he accepted that the payment was overdue and that he had insufficient funds to pay the debt.Footnote ¹⁰¹ Rather, Mr Maud sought ‘to set aside the demand on the grounds that any payment of the amount due would amount to a breach of the sanctions regime currently in place prohibiting people in certain circumstances from dealing with the LIA’.Footnote ¹⁰² At the heart of the dispute concerning the application of the UN sanctions to the guarantee was the meaning of the words ‘funds and economic resources’ used in Article 5 of Regulation 2016/44, in Annex VI of which the LIA was, and remains, listed:Footnote ¹⁰³

Before the High Court of Justice, the LIA argued that the wording of Article 5(4) does not include the obligation on the part of Mr Maud under the guarantee, drawing a distinction between Articles 5(1) and 5(2), with the former constituting a ‘freezing prohibition’ and the latter a ‘making available prohibition’.Footnote ¹⁰⁴ In this regard counsel for the LIA submitted that the guarantor's obligations should fall under the ‘making available prohibition’ and that, as the LIA is subject only to the ‘limited freezing prohibition in Article 5(4), there is nothing now to stop Mr Maud paying out under the guarantee’.Footnote ¹⁰⁵ However, Rose J found in favour of Mr Maud, expressing the view that the words ‘funds and resources’ ought to be given the same meaning throughout Article 5.Footnote ¹⁰⁶ With regard to the argument raised by the LIA, Rose J concluded that ‘the payment by Mr Maud of the sums due under the guarantee is prohibited by article 5(4) of Regulation 204/2011’.Footnote ¹⁰⁷

The LIA appealed against the decision by Rose J, and the Court of Appeal issued its judgment allowing the appeal on 27 July 2016. Although Moore-Bick, Longmore and Macur LJJ agreed with Rose J that the words ‘funds and resources’ must be given the same meaning throughout Regulation 2016/44,Footnote ¹⁰⁸ they disagreed with her finding that payment pursuant to the guarantee should consequently be prohibited by Article 5(4) of the legislation. According to Moore-Bick LJ, ‘the correct understanding of article 5(4) is that the payment of debts due under obligations such as the guarantee, in this case, does not involve dealing with the obligation but represents the provision of new or additional funds’.Footnote ¹⁰⁹ For that reason, because Article 5(4) of Regulation 2016/44 provides only for the continued freezing of already-frozen assets, payment under the guarantee would not contravene the sanctions measures in force against the LIA. Again, in the words of Moore-Bick LJ:Footnote ¹¹⁰

The Court of Appeal, therefore, adopted a rather expansive interpretation of the relevant UN sanctions measures as translated into EU law and the law of England and Wales. Had the Court of Appeal accepted the reasons articulated by the High Court, then the LIA would have had a much smaller portfolio of assets to manage from among those intended for its access by the partial easing measures adopted by the UNSC in Resolution 2009 (2011). In addition, as Rose J notes in her judgment,Footnote ¹¹¹ the provisions of Regulation 2016/44 must be applied across all EU member states. Given that the LIA was established to make investments for the benefit of the Libyan people, it is hoped that an equally broad interpretation might be afforded to the partial easing measures in other jurisdictions in which the fund opts to litigate.Footnote ¹¹² The following section will analyse the success of the LIA in the domestic courts of one such EU jurisdiction, Italy, but not in respect of asset-freezing measures requested by the UNSC. Instead, the focus rests on a successful challenge to an ICC-requested asset freeze.

4.3. Before the Italian Courts

It was pursuant to Article 666 of the Italian Code of Criminal Procedure that the LIA (through its legal representative) appealed against the freezing of a broad portfolio of assets by the responsible Italian authorities (the Guardia di Finanza, a branch of the Ministry of Economy and Finance) at the request of the ICC.Footnote ¹¹³ In short, the LIA's appeal stemmed from its claim that the frozen assets did not actually belong to members of the Gaddafi family (including Muammar Gaddafi and Saif al-Islam Gaddafi, both of whom had been subject to arrest warrants issued by the ICC) or Abdullah al-Senussi. Rather, the LIA claimed that the frozen assets, in fact, did belong to the LIA and its subsidiary, LAFICO.Footnote ¹¹⁴ The assets that formed the subject of this appeal included property in the Italian capital of Rome, shares in Juventus Football Club SpA, Finmeccanica SpA, UniCredit SpA, Eni SpA, the vehicle manufacturing company Fiat SpA and land in Pantelleria, an island situated in the Mediterranean Sea between Sicily and Tunisia.Footnote ¹¹⁵ The LIA specifically alleged violations of the right to property of persons outside the criminal proceedings, the principle of state sovereignty, and the ICC Statute in support of its request that the freezing orders issued in respect of the foregoing assets between 22 March 2012 and 28 March 2012 be declared null and void.Footnote ¹¹⁶ More precisely, the LIA argued that the measures taken by the Italian authorities were ultra vires the ICC Statute because there had not yet been a conviction which, in its opinion, is a requirement of Article 75(4) of the Court's constituent instrument.Footnote ¹¹⁷ In other words, the LIA argued that:Footnote ¹¹⁸

Article 57(3)(e) of the ICC Statute empowers the Court's Pre-Trial Chamber to request states parties to ‘take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims’,Footnote ¹¹⁹ but only after ‘a warrant of arrest or a summons has been issued’.Footnote ¹²⁰ In contrast, Article 75(4) of the ICC Statute empowers the Court to determine whether measures under Article 93(1) thereof ought to be taken in order to give effect to an order for reparations to victims (only) ‘after a person is convicted of a crime within the jurisdiction of the Court’.Footnote ¹²¹ In turn, Article 93(1) of the ICC Statute requires states parties to provide the ICC with various forms of cooperation. These include assistance as regards ‘identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties’.Footnote ¹²²

Turning to the Italian court's judgment, the bench noted that the ICC requested Italy's cooperation pursuant to Article 57(3)(e) of the ICC Statute – that is, the provision authorising the Court to request pre-trial ‘protective measures for the purpose of forfeiture’Footnote ¹²³ – a request dated 26 October 2011Footnote ¹²⁴ and deemed enforceable in Italy on 21 February 2012.Footnote ¹²⁵ The Rome Court of Appeal also observed that the ICC, in its cooperation request, expressly delimited the object of the seizure to movable and immovable property, bank accounts, and shares belonging to or under the (in)direct control of the accused persons, or held by companies or bodies (in)directly owned or controlled thereby, without prejudice to the rights of bona fide third parties.Footnote ¹²⁶

What is more, according to the Italian court, the ICC also expressly noted its desire that any freezing measures implemented at its request should not interfere with the UNSC-ordered asset freeze ‘to ensure that those assets that do not belong to or are not controlled by the suspects are made available and used for the benefit of the Libyan population’.Footnote ¹²⁷ This appears to be a pragmatic inclusion. First, it acknowledges the supremacy of states’ obligations stemming from the UN Charter compared with other treaties, including the ICC Statute.Footnote ¹²⁸ Second, it recognises that Libya's wider population, beyond potential ‘victims’ (as defined at the ICC)Footnote ¹²⁹ of the crimes under the jurisdiction of the Court of which the (at the time, three) accused persons might be convicted, also has a valid claim to the assets under the control of those on the sanctions list.

Finally, the Rome Court of Appeal concluded that ‘the assets seized from the “LIA” … cannot be included among those mentioned in the request of the International Criminal Court, since they cannot be traced back to the person against whom the [ICC] intends to proceed’.Footnote ¹³⁰ In so doing, the Rome court attempted to guarantee that the rights of one bona fide third party, namely the LIA, were protected at the domestic level and, by extension, the international level. In other words, by terminating Italy's measures giving domestic effect to the Court's request for cooperation (at least in part),Footnote ¹³¹ the ICC request no longer operated to the detriment of those (in this case, legal) persons against whom the restrictions were not directed.Footnote ¹³²

Why might this situation have arisen? Rule 99(2) of the ICC Rules of Procedure and Evidence (ICC RPE) explicitly provides that the Court need not provide notice of its request for the imposition of pre-trial protective measures ‘unless the Court determines … that notification could not jeopardize the effectiveness of the measures requested’.Footnote ¹³³ Where no notice is given, it falls to the ICC Registrar to notify the person(s) against whom the execution of the measures is requested as well as other ‘interested persons’ who are then invited ‘to make observations as to whether the order should be revoked or otherwise modified’.Footnote ¹³⁴ This approach can be contrasted with that taken in respect of post-conviction forfeiture measures, which are governed in part by Rule 147(2) of the ICC RPE: ‘If before or during the hearing, a Chamber becomes aware of any bona fide third party who appears to have an interest in relevant proceeds, property or assets, it shall give notice to that third party’.Footnote ¹³⁵

Although binding only upon the parties, with Italian court decisions not enjoying stare decisis in a formal sense,Footnote ¹³⁶ not only did the judgment of the Rome Court of Appeal bring an end to the impugned measures but, like the decision of Moore-Bick, Longmore and Macur LJJ in England and Wales, it might constitute relevant guidance for other domestic courts when faced with related claims in the future.Footnote ¹³⁷ When targeted by asset-freezing measures, individuals are disposed to conceal their assets by transferring them to third parties; but when the latter are bona fide, their interests must be protected under the terms of the ICC Statute. This article has aimed to show that the decision of the Rome Court of Appeal does exactly that.