Dear Readers,

The following commentary first ran in Legal Eye on the ICC, a regular e-letter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye newsletter, click here

On June 9, 2011, Trial Chamber II issued a decision suspending the immediate return of three detained witnesses in the Katanga-Ngudjolo case to the DRC, pending their political asylum applications in The Netherlands.[i] All three, military colleagues of the accused, were detained in the Makala prison in Kinshasa and were transferred to The Hague to testify pursuant to Article 93 of the Rome Statute and Rule 192 of the Rules of Procedure and Evidence. These regulations create a procedural framework that directs the Registrar to manage the transfer and custody of detained witnesses and return them following their testimony. This is the first time a witness before the ICC has applied for asylum.

In the decision, the Chamber analyzed the precise scope of its duty to protect witnesses under Article 68 of the Rome Statute, drawing distinctions between that responsibility and the Court’s duty to protect them against human rights violations in general.[ii] It determined that Article 68 grants only a narrow mandate to ‘prevent the risk witnesses incur on account of their cooperation with the Court’.[iii] However, the Chamber acknowledged its obligation under internationally recognised human rights laws to honour the detained witnesses’ right to seek and be granted asylum, and concluded that it could not interfere with that right. Specifically, it recognised the principle of non-refoulement, the protection of refugees from being returned to a place in which their lives or freedoms could be threatened.[iv] The Court further found that it was not under any obligation to assess the risks of persecution faced by witnesses seeking asylum, nor was non-refoulement strictly applicable as the Court has no territory in which to maintain jurisdiction over witnesses. Nevertheless, it held that it could not disregard human rights law that provides for open recourse to asylum proceedings.[v]

The Chamber also ordered the Registry to authorise contact between the detained witnesses and their Dutch asylum counsel, which had been previously forbidden by the Registry pursuant to a pre-existing agreement with Congolese authorities, from whom prior authorization was needed for all contact with individuals outside the detention center.[vi] In light of the asylum applications, however, the Chamber found that ‘this situation cannot continue’ and ordered that Dutch counsel have access to the witnesses as soon as possible. The decision also rejected the application of the witnesses’ Dutch attorneys to file an amicus curiae brief. Because the application for asylum was already before the Dutch authorities, the Chamber did not find that an amicus brief would be ‘useful’ in its determination of any facts.

In the June 9 decision, the Chamber refrained from ruling on whether proper protective measures can be implemented prior to the return of the witnesses, noting that if it were satisfied with protective measures in place in the DRC, ‘there would in principle be no reason for the Court to delay the witnesses’ return to the DRC any further’.[vii] The Office of the Prosecutor, the Government of the Kingdom of the Netherlands, and the DRC Government have all filed applications for leave to appeal the decision.

In a subsequent decision issued on June 22, however, the Chamber appeared to have reversed its prior findings, holding that:

[I]n principle, therefore, the detained witnesses can be returned as soon as the [Victims and Witnesses Unit] confirms that the DRC has accepted to cooperate with the Court in this matter and all necessary preparation has been accomplished. However, the Chamber reminds the DRC that even if the above measures are in place, the Court will only be able to return the detained witnesses if their request for asylum has been rejected by the Dutch authorities.[viii]

The June 22 decision was issued after the Registry had filed observations regarding the efficacy of proposed protective measures on June 7,[ix] a report disputed by counsel for the witnesses. In its earlier risk assessment, the Victims and Witnesses Unit (VWU) had determined that as a consequence of their status as witnesses before the ICC, there appeared to be no increased risk of harm.[x] The VWU did note, however, that it would be difficult to implement appropriate protective measures for detained witnesses within a prison system.[xi] In its June 22 decision, the Chamber determined that the implementation of several protective measures would meet the necessary requirements and allow the return of the detained witnesses as described above.  The measures to be implemented by the DRC authorities include: their placement in a maximum protection facility, with specially-trained guards and security from co-detainees, and bi-weekly visits from members of the VWU as well as during any proceedings against them.[xii]

The three witnesses claim that if they are returned to the DRC, their lives and those of their families will be in danger as a result of their knowledge of the Government’s role, specifically that of President Kabila, in the attack on Bogoro. In support of this allegation, Dutch counsel for the three witnesses sent an urgent communication to the Trial Chamber regarding the status of Colonel Richard Beiza Bamuhiga (Congolese), who was brutally assaulted by Ugandan security forces following the revocation of his refugee status based on an agreement between Congolese and Ugandan authorities, and remains in critical condition.[xiii] The Ngudjolo Defense also filed observations supporting the witnesses’ request that the ICC not return them to the DRC.[xiv]

The Katanga Defense had sought to meet with the witnesses at the ICC penitentiary facility prior to their testimony. This request was rejected by the Trial Chamber, which held that the Protocol on Witness Familiarisation prohibits such contact.  The Chamber authorized counsel for Katanga to hold urgent meetings with witnesses in an administrative area of the penitentiary facility in the DRC.[xv] Defense counsel then requested that the witnesses visit the accused in prison following their testimony at the ICC.[xvi] At the time of writing, the Trial Chamber has not yet decided upon this request.

Read the Trial Chamber’s decision suspending the immediate return of the witnesses.

Read the Trial Chamber’s decision on the security situation of the three witnesses.
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