Three defense witnesses, who have each appeared in the cases concerning Germain Katanga and Mathieu Ngudjolo Chui, have taken the unprecedented step of applying for asylum in the Netherlands while they were in The Hague providing testimony to the International Criminal Court (ICC).

Katanga and Ngudjolo are on trial before the ICC for crimes against humanity and war crimes for crimes committed during an attack on the village of Bogoro in February 2003, as part of a conflict in Ituri, Democratic Republic of the Congo (DRC). The three witnesses, Floribert Njabu, Pierre Célestin Mbodina Iribi and Sharif Manda Ndadza Dz’Na, were former leaders or members of the militia forces allegedly led by the two defendants and have been in detention in the DRC for over five years without facing trial. They are being detained in the DRC for their alleged roles in the murder of nine UN peacekeepers.

All three witnesses implicated the government of the DRC, including President Joseph Kabila personally, in the attack on Bogoro. For this, they claim they will face persecution and security risks if they are sent back to prison in the DRC.  

Specifically, the witnesses are afraid that because of their testimony implicating the President of the DRC in the attack on Bogoro and the Ituri conflict, they will be “eliminated” as potentially incriminating witnesses in a future ICC trial against Kabila or other DRC government officials (note: there is no indication that such a trial would ever take place). Furthermore, the witnesses fear they would be persecuted because their testimony could damage President Kabilia’s opportunities during the upcoming elections.

The witnesses have also argued that their human rights will be violated if they are returned to the DRC, where they claim they will be unable to receive a fair trial and will suffer violations of their right to personal integrity because they are opponents to the regime and because of their testimony. According to the witnesses, persons who are considered opponents to the government are either executed or subjected to a summary trial, in violation of their rights to a fair trial. The witnesses also submitted that they would not be secure in the Makala prison, where they have been detained in the DRC. They argued that this would violate their right to physical integrity.

The witnesses have made a formal application of asylum before the appropriate Dutch authorities. The ICC does not have authority to hear the asylum claim, nor can it keep the witnesses in custody, as it is not a state. Therefore, the witnesses have requested the ICC to apply a special protective measure: to refrain from returning them to the DRC and present them to the Dutch authorities so that they can pursue their asylum claims.

The request to the ICC judges is being made on the grounds that the ICC has an obligation to protect witnesses under Article 64(2) of the Rome Statute. However, the ICC also has an obligation under Article 93(7) of the Statute to return the witnesses to their country of origin immediately after their testimony. These are competing obligations.

The request also touches upon broader obligations of the ICC to protect human rights. According to the defense, the ICC also has obligations based on its status as an international legal person, per Article 4(1) of the Statute. This status, the defense argued, means that the court is bound by principles of customary international law and therefore has a duty to promote and facilitate the protection of human rights.

This commentary is the first in a three-part series that will discuss this novel issue of law. It provides a general overview of the witnesses’ testimony and the procedural background to their asylum claims. The second installment will describe the relevant Dutch asylum law and the witnesses’ specific asylum claims, with reference to any prior precedent from other international courts. The third and final article will discuss the possible implications for this request and the decision of the ICC on this matter.

Witnesses’ Testimony

Floribert Njabu, the former president of the Nationalist and Integrationist Front (FNI, the armed group allegedly led by defendant Mathieu Ngudjolo Chui), was the first detained witness to testify. According to the witness, Kinshasa forces attacked Bogoro, not the FNI or the Front for Patriotic Resistance of Ituri (FRPI, the armed militia allegedly led by defendant Germain Katanga). Both Kinshasa and Uganda, the witness claimed, provided support for the FNI’s efforts to regain control of Ituri from the forces of Thomas Lubanga’s UPC (Union of Congolese Patriots; Lubanga is also on trial before the ICC).

Pierre Célestin Mbodina Iribi was a high-ranking member of the FRPI. In his testimony, Iribi directly blamed the DRC government for the attack on Bogoro. He testified that Integrated Operational Head Command (EMOI), the government-backed military structure based in Beni, had sent officers to organize troops in the Aveba area and prepare the attack on Bogoro.

Sharif Manda Ndadza Dz’Na was also a high-ranking officer in the FRPI and testified that EMOI was created by the Kinshasa government to combat rebel forces and liberate eastern DRC. The witness said that he attended several EMOI meetings, and that occasionally, Colonel Aguru from the government military forces, FAC, came from Kinshasa to give instructions and tell them what the next armed operations would involve, including an operation that involved the attack on Bogoro.

Procedural Background

In November 2010, the defense for Germain Katanga informed the court that it intended to call four witnesses who were in detention in the DRC. The defense for Katanga therefore requested the court to order the Registry to make arrangements for their transfer to The Hague. At that time, the defense for Katanga also indicated that the witnesses may be testifying about sensitive issues related to President Kabila’s involvement in the Bogoro attack.

In order to transfer of witnesses from the custody of the DRC to the ICC, the ICC issued a request for cooperation with the DRC in January 2011. The judges also directed the ICC’s Victims and Witnesses Unit (“VWU”) to be closely involved in the process of transferring the witnesses to The Hague and to propose appropriate witness protection measures. VWU is within the offices of the ICC Registry and thus is not a party to the proceedings and is not aligned with the prosecution, defense, or the victims participating in the proceedings.

Later that month, the defense requested the court to substitute two witnesses from the original four persons with two other witnesses. Although witness security was not per se given as the reason for this change, the defense raised the issue of the witnesses’ fear of “retaliation from the DRC authorities who will necessarily have to be informed of their testimony in The Hague.” The judges granted this request.

In a report from the Registry about the transfer of these witnesses to The Hague, filed before they were transferred and before the asylum claims were made, the Registry submitted that it had discussed various protection issues with the witnesses, including:

Reasons for return to the DRC after testimony; […] The possibility of raising before the Court their detention in the DRC and the fact that they have been detained for over five years without trial; […] Their personal protection in the Prison Central prior to and after their transfer to the Hague; […] The protection of their family members prior to and after their transfer to The Hague; […] Whether the DRC authorities will have access to the transcripts of the testimonies.

The Registry also submitted that it had addressed the security issue with representatives of the DRC government, and that it would conduct an impact study on potential protective measures.

In early March, the Registry transmitted the observations of the DRC in relation to the witnesses’ testimony. Attached was a letter from the DRC Ministry of Justice in which it “encouraged” the court to apply protective measures for the witnesses, including: an order from the court that the evidence be given in closed session, nondisclosure of the witnesses’ identity and the content of their testimony, confidentiality of the transcripts, and other protective measures to ensure that the identity of the witnesses and the context of their evidence be confidential.

In mid-March, before the witnesses were due to testify and before they had been transferred to The Hague, the defense for Katanga withdrew one of the four witnesses. No reasons were given for this withdrawal. Later that month, the defense for Katanga informed the court that the three remaining witnesses were willing to testify publicly. However, the defense reported that the witnesses were afraid of retaliation from the DRC authorities. Although the authorities already knew the content of their testimony, the witnesses reportedly feared that the DRC authorities would delay retaliation in an effort to maintain an initial appearance of goodwill towards the court. The defense also requested that the court closely monitor the witnesses after they returned to the DRC and work with the DRC authorities to ensure respect for and protection of the witnesses’ rights and safety.

However, in a subsequent filing, VWU asserted that “[n]either the Registry nor the Court has the competency to exercise its influence on the [DRC] authorities’ management of a national detention center.” The VWU said it would maintain regular contacts with the witnesses for a “significant” period of time after their return, and may cooperate with the International Committee of the Red Cross in order to protect these three witnesses.

The key issue is that once the witnesses are back in the DRC detention center, the ICC would have no jurisdiction over the three witnesses, which would limit the practical capacity of the ICC to ensure their protection and safety while in the custody of the DRC detention authorities.

This situation is distinct from other non-detainee witnesses who seek protective measures because persons who are not detained by the State have greater capacity to elect to contact the ICC directly should they feel threatened. Typically the ICC engages in cooperation agreements with States to provide protective measures and the witnesses have the ability to contact the ICC should their security situation change. In this case, the VWU seemed to indicate that the best that could be done in the circumstances would be to monitor the situation and hope for the Red Cross and the DRC government to cooperate in protecting the witnesses detained in the national prison system.

The witnesses were transferred to The Hague on March 27, 2011, and completed their testimony between March 30 and May 3, 2011. Upon their arrival, the witnesses were assigned a legal representative for issues pertaining to their transfer to and issues of self-incrimination, Mr. Mabanga. Mabanga has been making submissions on behalf of the witnesses before the ICC in relation to the asylum and transfer issues. However, he is not representing the witnesses’ actual asylum claims before the Dutch authorities.

The issue of the witnesses’ fears for their security became apparent almost immediately after they arrived. On March 29, Floribert Njabu asked the court to confirm that the DRC would not persecute his family members instead of him and asserted that he was still concerned about his personal safety upon his return to the DRC. Then on April 1, Iribi also submitted to the court that the Minister of Justice and Human Rights of the DRC had come to the detention center to film their departure to The Hague and had issued a press release about the transfer that included their names. He claimed that the DRC could attempt to murder them upon their return and hide the murders by claiming they were ordinary crimes or attempted escapes. He also claimed he feared for the safety of his family.

In response to these submissions, the chamber ordered the Registry to keep the chamber informed about the relevant protective measures and discuss with the witnesses what protective measures could be employed to adequately protect them and their family members.

Application for Asylum and Status Conference to Hear Submissions on the Issue

The first notice that claims for asylum were going to be filed was given on April 11, when Iribi petitioned the court to be transferred to the Dutch authorities so that he could make a request for asylum. Iribi argued that he had well-founded fears of retaliation because of the DRC government’s material and legal ability to “eliminate” him.

On April 12, the ICC legal representative for the three detained witnesses, Mr. Mabanga, filed a request for protective measures for all three witnesses. This request sought leave from the ICC to have the three witnesses presented to the Dutch authorities so that they could make a claim for asylum in The Netherlands. The request alleged that the witnesses had a well-founded fear of retaliation by the DRC authorities and argued that the protective measures proposed by the VWU were insufficient.

In response, the VWU observed that to its knowledge, the DRC had not yet attempted to harm the witnesses, even though it had long been public knowledge that the witnesses intended to implicate the government in the Ituri conflict. The VWU also noted that it had assessed the political situation in the DRC, including the upcoming elections and its efforts to implement the Rome Statute.

Dutch lawyers representing the witnesses in their asylum claim filed the actual claim for asylum with the Dutch authorities on May 12, 2011.

Also on May 12, the court convened a status conference to discuss the issue. It heard from the witnesses’ legal representative, the parties (prosecution and defense), the Registry, and representatives of the Dutch government.

The issues raised at the status conference focused on the dual obligation of the Court to return the witnesses to the DRC immediately after their testimony,[i] and the obligation of the court to protect witnesses.[ii] During the status conference, the legal representative for the witnesses reiterated the alleged dangers faced by the witnesses should they be returned to the DRC. He argued that the court had an obligation to protect witnesses and that this was a necessary witness protection measure.

As noted above, Katanga’s counsel also pointed out that the Court is obligated to protect international human rights of witnesses due to the legal personality of the Court as an international legal person. Counsel for Ngudjolo’s defense team also focused on the obligation of the Court with respect to protecting human rights of witnesses.

According to the prosecution, the witnesses were Congolese detainees temporarily transferred to the ICC by the DRC for the duration of their testimony, and the authorities of the Netherlands have responsibility for facilitating their transfer, and nothing more. The witnesses, therefore, remain under the jurisdiction of the DRC, the prosecution averred. The prosecution also suggested that there was no objective evidence of risks or threats to the witnesses’ lives should they be returned to the DRC.

The Registry seemed to take the same position as the prosecution—that the witnesses were temporarily in the custody of the ICC but were still within the jurisdiction of the DRC. According to the Registry, the witnesses are only detained by the Congolese authorities, for which the ICC has temporarily taken responsibility. The Netherlands, as the Host State of the ICC, does not have any jurisdiction over these witnesses. Although the witnesses may be on Dutch soil, they remain under the authority of the DRC, the Registry argued. The Registry also submitted that if the court were to grant this request, it may mean that in the future states would be unwilling to accept ICC requests for the temporary transfer of detained witnesses for testimony.

A representative from the Dutch Ministry of Foreign Affairs explained that the Dutch government considered that the witnesses were not under the authority of the Dutch government and thus the Dutch government was not responsible for protection of ICC witnesses that fall under the jurisdiction of the ICC. It was the ICC’s responsibility to provide the necessary protective measures for the witnesses.

Any request for asylum received by the appropriate Dutch authorities would be decided in due course, she said. However, the representative submitted that the Dutch authorities will rely on the assessment of the ICC of whether there is a risk to the safety of the witnesses. According to the Dutch government, the ICC is the only competent authority to decide on the safety and security of the witnesses, and therefore, the Dutch authorities considered that they do not have the authority or intention of giving an assessment on the merits. A decision will be made, but there will not be a new assessment of the content of the asylum application. If the court determined that it was safe for a witness to be relocated, the representative said, the Netherlands would transport the person to a point of departure. If the court determines that it is unsafe for the witness to return, then it would become a witness protection issue, which is a shared responsibility between the Assembly of State Parties (ASP) and the court. In that case, she suggested, the witnesses would remain in the ICC detention center under the authority of the court.

New Risk Assessment Submitted by the Registry

In the following week, the legal representative for the witnesses filed additional observations on the various risks faced by the witnesses. The Registry also submitted a new risk assessment, in which it restated its previous analysis of the situation. The Registry stressed that it was limited to evaluating only those risks that arise as a consequence of the witnesses’ status as witnesses or the content of their testimony.

In response to these observations, the legal representative for the witnesses repeated the witnesses’ assertion that they face serious risks because they have directly implicated President Kabila in their testimony. Additionally, it was submitted that the publicity surrounding their testimony does not provide the witnesses with any additional protection. The legal representative for the witnesses doubted the veracity of the Registry’s assertion that the DRC has always fully cooperated with the ICC and noted that the DRC should not be considered as a “partner” of the Registry or the Office of the Prosecutor.

Counsel for Katanga also filed a reply to the Registry’s new risk assessment in which the defense argued that the Registry did not base its risk assessment on an investigation, and argued that the potential risk must be viewed in the larger scope of the conditions in the Makala prison where the witnesses are detained. The defense also argued that although the general content of the witnesses’ testimony may have previously been known, their actual testimony was much more detailed than what was known before and carries much more critical personal and political consequences. The defense also argued that the security assessment should be conducted by the Dutch authorities, and not by the Registry.

The trial chamber considered all of the submissions before it. In an order rendered on May 24, 2011, it ordered the Registry to provide a report on assurances for protection of the witnesses that could be put in place in the DRC. The chamber noted that:

[T]he VWU considers that the physical security of the witnesses is not exposed to an increased risk because of the fact that they have testified before the Court. Although the VWU does not explicitly confirm that the three witnesses are currently under no risk at all, the only conclusion which the Chamber can draw from the Risk Assessment is that the VWU is satisfied that, at present, there is no need for the Court to protect the detained witnesses.

The chamber concluded that although the current risk is low, the VWU considers that it is important to monitor the situation, as the risk may increase in the future. The chamber also noted, however, that once the witnesses are returned, the Registry will be severely limited in its ability to take protective measures, and would rely on the cooperation of the DRC authorities. It would be appropriate, the court asserted, for the VWU to discuss which protective measures, besides monitoring, will be implemented in order to contain the risk faced by the witnesses because of their testimony. Furthermore, the VWU must investigate what protective measures can be put in place together with the DRC authorities in case the risk does increase in the future. A report from the Registry on these discussions is due June 7, 2011.

The court has not yet rendered a decision on the request for asylum.

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