In an unusual turn of events during the International Criminal Court (ICC) trial of Germain Katanga and Mathieu Ngudjolo Chui, three defense witnesses have requested an unprecedented protective measure: to have their return to the DRC stayed and to be turned over to the Dutch authorities pending their claims for political asylum in the Netherlands.

Floribert Njabu, Pierre Célestin Mbodina Iribi, and Sharif Manda Ndadza Dz’Na were former leaders or members of the Front for Patriotic Resistance of Ituri (FRPI, the armed militia allegedly led by defendant Germain Katanga) or the Nationalist and Integrationist Front (FNI, the armed group allegedly led by defendant Mathieu Ngudjolo Chui). These three witnesses have been detained in the Democratic Republic of the Congo for over five years for their alleged role in the killing of UN peacekeepers during the conflict in Ituri, DRC. They all testified that the DRC government, including President Joseph Kabila, was responsible for the attack on Bogoro in February 2003 that forms the basis of the charges against Katanga and Ngudjolo. As a result, they claim that if they are returned to prison in the DRC, they will face persecution, human rights abuses, and possible execution.

This is the second of three posts that addresses this issue, which focuses on Dutch asylum law and the most recent Trial Chamber decision on the issue (the June 9 decision), including the possible appeals to this decision and the difficulties of the witnesses in gaining access to their Dutch asylum lawyers from the ICC detention center. The first report, dated June 6, addressed the background to the issue and the positions of the parties involved. The third, due once the ICC Trial Chamber has made a final determination on the issue, will examine the possible implications of this issue on the ICC.

The Witnesses’ Claims

Mr. Ghislain Mabanga, the witnesses’ lawyer representing them before the ICC, supported the witnesses’ claims by highlighting the experience of Colonel Richard Beiza. Beiza is a former member of Thomas Lubanga’s Union of Congolese Patriots (UPC; Lubanga is also on trial before the ICC). Beiza had been in exile in Kampala, Uganda since February 2009 and was arrested there on May 15, 2011. According to sources cited by Mabanga, Beiza was beaten after his arrest and lies close to death in a prison near the border between Uganda and the DRC. Beiza had also recently accused the DRC government of being involved in the Bogoro massacre. This is evidence that the three witnesses will face danger upon their return, Mabanga argued.

Witnesses to Remain in ICC Custody Pending Asylum Claim

The three witnesses submitted their asylum claims to the Dutch authorities on May 12, 2011. The witnesses are being represented by two Dutch lawyers in their asylum claim, Flip Schüller and Göran Sluiter. The asylum lawyers applied to the ICC Trial Chamber for permission to submit an amicus curiae brief on the asylum proceedings, the nature of Dutch asylum law, and challenges they face representing their clients, who are in detention at the ICC Detention Center.

This amicus application was recently denied by the Trial Chamber in its June 9 decision. The Chamber considered that it did not satisfy the legal test for submission, namely, that at the current stage of proceedings, the submission was not indispensible nor did it provide information which the Chamber could not otherwise obtain.

However, the Chamber went on to consider the witnesses’ request, acknowledging the witnesses’ right to seek asylum in the Netherlands. The Chamber held that it will wait for the Dutch immigration authorities to make a decision on the asylum claim before deciding what steps should be taken next concerning witness protection measures and returning the witnesses to the DRC.

Witness protection is distinct from asylum claims

At the basis of its decision, the Chamber drew a careful distinction between three types of protection measures: (1) standard witness protection measures taken by the Court on the basis of Article 68 of the Rome Statute; (2) protections against potential or actual human rights violations generally; and (3) protections against the risk of persecution in the event an asylum seeker is returned to the country of origin.

The Chamber emphasized that the ICC is not required to protect witnesses against risks that fall beyond the scope of those arising out of the witnesses’ collaboration with the ICC. The Chamber stated its obligations cannot extend to those risks that arise based on the alleged lack of respect of human rights in the DRC. The Chamber therefore found that the assessment it is required to perform to protect witnesses is distinct from that performed by a State in assessing the risk of persecution under an asylum claim in order to respect the principle of non-refoulement.

Non-refoulement is a principle under international law, found in International Convention on Cultural and Political Rights (Articles 2 and 7) and the UN Convention Against Torture (Article 3), which protects refugees from being returned to places where their lives or freedom could be threatened. The Chamber held that only a territorial state is qualified to apply the principle of non-refoulement. While the Chamber held that issue is not within the Court’s jurisdiction, it also noted that it is a principle of international customary law and that it could not ignore the issue. The Chamber emphasized that according to Article 21(3) of the Rome Statute, it cannot apply the Rome Statute in a way that would violate or be inconsistent with human rights.

Citing international treaties and declarations, the Chamber further concluded that in this case, the application of Article 93(7) of the Statute (which provides that the Court must return the witnesses to the DRC after their testimony) must not be interpreted in a manner that would be inconsistent with internationally recognized human rights, such as the right to claim asylum. For one, if the witnesses were immediately returned to the DRC upon conclusion of their testimony, they would be unable to exercise their right to seek asylum and would thus be denied the fundamental right to exercise an effective remedy. Moreover, had the Chamber proceeded to transfer the witnesses back to the DRC, it would result in requiring the Netherlands to cooperate with the Court in returning the witnesses to the DRC, and in effect, the Court would have been forcing the Netherlands to violate the witnesses’ rights under the principle of non-refoulement.

What could happen next?

The Chamber outlined a number of possible scenarios that could materialize once it has received all information on witness protection measures that could be applied if they were returned to the DRC detention center.

The first possible scenario concerns the return of the witnesses to the DRC, which the Chamber would consider (1) should the witness protection measures set out in a prior order be deemed sufficient, and (2) should the Netherlands reject the witnesses’ asylum claims.

The second possible scenario relates to the non-return of the witnesses to the DRC (1) should the Chamber consider the protective measures inadequate, and (2) should the Netherlands reject the asylum claims or refuse to apply the principle of non-refoulement. The Court would then work with one or more Rome Statute State Parties to find a solution for protecting the witnesses.

The Chamber left open the question of what would happen should the Court find the protective measures adequate while the Dutch authorities’ decision on asylum or non-refoulement remained pending. The Chamber underscored that an outstanding asylum request prevents the immediate transfer of the witnesses. In such a situation, the Chamber considered, a solution must be found based on an agreement between the Court, the Netherlands, and the DRC. This agreement would also determine under whose custody the witnesses fall. The witnesses would remain in the custody of the Court during this process.

The Chamber urged the Dutch authorities to proceed in investigating the witnesses’ claims, because a delay in doing so could unreasonably extend the witnesses’ detention. The Chamber emphasized that the Court cannot keep the witnesses in its custody indefinitely.

The prosecution, the Dutch authorities, and the DRC authorities have all reportedly sought leave to appeal this decision.

Dutch Asylum Law

The exact nature of the witnesses’ claims before the Dutch asylum authorities are not publicly known due to reasons of client confidentiality. However, a brief explanation of Dutch asylum law is described below to demonstrate the requirements for claiming asylum in the Netherlands and some of the issues that have already arisen in this case.

Have the witnesses ever been “within” the Netherlands?

According to Dutch asylum law, everyone has the right to seek asylum. Asylum claims must be made from within the Netherlands—they cannot be made from abroad. The Dutch immigration department, the IND, investigates asylum claims.

Since asylum claims can only be made from within the Netherlands, they must find a basis for the Netherlands’ jurisdiction over the pending claim. At a status conference held in May, the Court heard from the witnesses’ ICC lawyer, the parties, and representatives of the Dutch government. One of the main issues at the conference was jurisdictional—who had jurisdiction over the witnesses:  the ICC, the DRC, or the Netherlands?

The Registry and the Prosecution considered that although the witnesses are on Dutch soil and within the premises of the ICC, they remain under the authority of the DRC because they were detainees in the DRC and required a special agreement under Article 93 of the Rome Statute between the ICC and the DRC in order to transfer them to the ICC to give testimony. The Dutch authorities argued that “the legal status of these detainees in the Netherlands is that they are in the temporary custody of the Court with the agreement of the DRC and at no time [have been] in the custody of the Netherlands.”

According to Sluiter, one of the witnesses’ asylum lawyers, Dutch jurisdiction over the asylum claim was established at the moment the witnesses landed at Schiphol Airport (in the Netherlands) and were in the hands of the Dutch authorities before being turned over to the ICC. However, the Dutch authorities submitted that even when transporting the witnesses, the Dutch government was only acting under the responsibility of the Court.

There also appears to be a distinction being made between jurisdiction and custody. The latest Trial Chamber decision referred to the witnesses being in the “custody” of the ICC—it did not say they were within the jurisdiction of the ICC. This will likely be a contested issue during the asylum claim before the Dutch authorities, and potentially later before the ICC judges since it appears from the latest Trial Chamber decision that, after the asylum process, the Court will decide whether to  return the witnesses’ to the DRC.

The test for asylum in the Netherlands

Individuals are eligible for asylum if they meet one of the following requirements:

• The claimant has a well-founded fear of persecution in their home country based on race, religion, nationality, political opinion or because they belong to a particular social group.
• The claimant has a well-founded reason to believe they would be subjected to inhuman treatment in their home country.
• The claimant had to leave their country due to severe and traumatic events. The trauma must have been caused by the government or by groups that exercise de facto power in a country, where the government cannot or will not protect the claimant.
• The claimant cannot return to their country because the Dutch government deems that the situation is too unsafe to return.
• The claimant is a family member of someone who already holds a residence permit for asylum and entered the Netherlands simultaneously or within three months after the family member was granted his/her residence permit.

An asylum application may be rejected if the claimant:

• Was in another country where they could apply for asylum before coming to the Netherlands or already applied for asylum in another country.
• Is a threat to public order and national security.
• Provided incorrect information in their application.

For the three witnesses, they will likely argue several grounds. They could argue that they have a well-founded fear of persecution due to their political opinions, given their testimony against the DRC government and President Kabila. They will also likely argue that they have well-founded reasons to believe they will be subjected to inhuman treatment in their home country. They have argued that if they are returned, they will face security risks, human rights violations (including a violation of their rights to a fair trial and bodily integrity), and will risk execution. They could also seek a finding from the Dutch government that it is too unsafe to return.

The applicants face the challenge of overcoming a determination that they would be a threat to public order and national security, given the serious nature of the allegations against them in the DRC.

The asylum procedure

The asylum application procedure involves a written application and two interviews. The first interview is general and the second interview involves detailed questions about the reasons for the asylum application, including the reasons the claimant left his or her home country.

In most cases, the asylum procedure takes from eight to fourteen days. However, where further research may be needed, the process can take up to a maximum of six months.

If the Dutch authorities reject the application, they will first send the applicant a written notice of their intention to reject. The applicant has the opportunity to file a written response. If the authorities give a rejection even in light of these written responses, the applicant still has the opportunity to appeal this decision before the Dutch courts.

The applicant must leave the Netherlands if their asylum claim is rejected.

If the application is granted, the applicant will receive a temporary residence permit to remain in the Netherlands for up to five years. This also gives the applicant the right to family reunification. Once the temporary permit has expired, the applicant can apply for permanent asylum and residence if they cannot return to their home country.

Who decides whether it is safe to return?

The official position of the Dutch immigration authorities, according to representatives of the Dutch government during the status conference, was that the ICC’s determinations on witness protection and security would influence the decision of the immigration authorities. The Dutch authorities stated that the asylum claim could not be decided until the ICC has made findings on the witnesses’ security.

According to the witnesses’ asylum representatives, this position conflicts with the right to seek asylum and the rights to access an asylum procedure under the Dutch law, in accordance with European Asylum Directives. Moreover, this position is untenable with the latest decision of the Trial Chamber, which held that the Trial Chamber will wait for the Dutch authorities to rule on asylum first before making a determination on protective measures for these witnesses (as noted above, this aspect of the decision has been the subject of requests for appeal). In the meantime, the witnesses will stay in the custody of the ICC.

In addition, according to Schüller and Sluiter, the representations of the Dutch authorities are not accurate or neutral with regards to Dutch asylum law and practice. In addition, the asylum representatives submitted that they fear the Dutch authorities will “hide” behind the ICC and will seek to minimize or discharge their duties with regard to the asylum application. They fear that because there are proceedings before two courts, Dutch courts and the ICC, the responsibility for the protection of these witnesses will be shifted from one to the other. As the latest Trial Chamber decision shows, the ICC has maintained that ultimately it will be responsible for the protection of the witnesses, to the extent that risks arise out of their status as witnesses before the ICC and the testimony they gave before that court.

Witnesses’ Struggles to Get Access to Asylum Lawyers

The Dutch asylum lawyers also claim that they have been denied access to their clients by the ICC Registry. They submit that they have requested, and have been denied, visits to the witnesses in the ICC Detention Center as “counsel” and as “other visitors.”

In its latest decision, the Trial Chamber ordered the Registry to grant the lawyers access to their clients, who are being held in the ICC detention center. The lawyers have not yet met their clients. They have been unable to explain the asylum process, which is currently pending before the Dutch courts, or prepare them for their asylum interview. The Registry initially refused to grant them access, arguing that it must first obtain the permission of the DRC authorities.

According to Sluiter, this position was contradictory and disconcerting. The asylum claim is being processed by the Dutch authorities, and access to their clients cannot be predicated upon the permission of the DRC, Sluiter contented.

The Chamber took a similar position that access cannot be governed by the DRC. In a status conference called on June 14, 2011, the Chamber noted with astonishment the Registrar’s submission that it could not implement the Chamber’s order.

The Chamber noted that the witnesses, upon arriving in the Netherlands, have not been able to communicate by telephone with the outside world without the prior authorization of the DRC authorities, as provided for in the DRC-ICC cooperation agreement reached prior to the witnesses’ transfer to the Court.

“As far as the Chamber is concerned, this situation cannot continue within the framework of the asylum proceedings,” the Presiding Judge said during the June 14 status conference. Reading from the June 9 decision, the Judge reiterated the point that “[a]ccess to the asylum judge, which is clearly an internationally recognized human right, is certainly not applicable if the applicants cannot discuss or contact the lawyers they have chosen.”

The Chamber recalled that in its June 9 decision, it had to determine whether or not prohibition of contact between detained witnesses and their Dutch lawyers is compatible with internationally recognized human rights. “Since the answer to this can only be negative…it is up to you to authorize such contact,” the Judge told the Registrar.

The Chamber reiterated its order to the Registrar to grant access to Schüller and Sluiter as soon as possible.

The Registrar told the Court that the judges had made their request clear. She noted that Mabanga, the ICC-appointed lawyer, was allowed to visit the witnesses without limitation. However, The Registrar said that to her knowledge, witnesses had not expressly themselves appointed the two lawyers as counsel and as there was no mandate of the Court appointing the two lawyers, they were thus treated as visitors. However, given the Chamber’s order, the Registrar submitted that she would grant access to Schüller and Sluiter.

According to the Chamber, “a letter was received 11 May from the lawyer’s firm, and the Registry provided a negative response to that letter.” The court said that it would not dwell on this point, and made no further observations on it.

The Dutch lawyers have since been given permission to visit the detainees, which is scheduled to take place later this week.

Experience of other international tribunals

There is no directly analogous case before the ICC or other international criminal tribunals. Granting asylum to witnesses appearing before such courts is a difficult issue, as it may motivate people to testify falsely in the hope that they will find a permanent exit from their home countries, which are often post-conflict or conflict zones. Witnesses may also be motivated to claim asylum in the Netherlands if their requests for protective measures are denied by the Trial Chamber.

The International Criminal Tribunal for Rwanda (ICTR) has had to deal with asylum issues but under different circumstances. There, the Court has faced requests for orders for asylum from defense witnesses, in order to ensure their appearance at trial and guarantee the defendant’s rights to a fair trial. The ICTR has responded by noting that it does not have jurisdiction over asylum issues—which it considers within the ambit of states’ territorial jurisdiction—and has instead authorized the Registrar to request cooperation and assistance from states and the United Nations High Commissioner for Refugees (UNHCR) to “take all possible measures” to assist in guaranteeing the presence of refugee witnesses at trial.

The ICTR has also faced the difficult issue of what to do with accused that are acquitted of their charges but cannot return to their home country because of fears for their safety and security. For example, André Ntagerura, a former Rwandan politician who was acquitted of all charges against him relating to the Rwandan genocide, requested the ICTR to order Canada to grant him asylum. He feared that if he were returned to Rwanda or relocated to other African countries, he would face security risks or persecution. Ntagerura argued that the Court had an obligation to effect his acquittal and release to any country of his choosing. He also argued that Canada had a duty to accept his asylum claim based on tis duties to cooperate with the ICTR. The Appeals Chamber of the ICTR declined this request, finding that there was no legal duty for UN Member States to cooperate in the relocation of acquitted persons. The Appeals Chamber ordered the Registrar of the ICTR to work with the UNHCR to find a suitable place for his location. In some cases such acquitted persons have been in ICTR safe houses for several years.

In the Katanga-Ngudjolo trial at the ICC, Trial Chamber II has also carefully noted a distinction over the issue of asylum, which is an issue for the Dutch courts to decide independently, and the issue of witness protection, which is the ICC’s responsibility. The ICC has been careful to note that it does not have jurisdiction over asylum issues or the issue of non-refoulement per se and that this jurisdiction lies with states.

Decisions from the Dutch courts on asylum and from the ICC on protective measures for the three witnesses are still outstanding. In the meantime, the trial against Katanga and Ngudjolo continues.