Dear readers – The following article was written by Sara Kendall, a Researcher in Post-Conflict Justice and ‘Local Ownership’ with the Grotius Centre for International Legal Studies, Leiden University.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

The claims of three defense witnesses in the Germain Katanga and Mathieu Ngudjolo Chui case who are seeking asylum in the Netherlands are still pending while Dutch authorities await rulings from the Appeals Chamber at the International Criminal Court (ICC).  Meanwhile, Trial Chamber II of the Court issued a decision this past week regarding the security situation of the witnesses.  Among other things, the decision, which can be accessed here, orders the ICC Registrar to consult with the government of the Netherlands and the Democratic Republic of Congo (DRC) regarding which state will take responsibility for detaining these witnesses after they are released from the custody of the ICC.  The decision illustrates the ongoing challenge faced by the ICC in securing state cooperation, a challenge that has been foregrounded by the asylum issue and its implications for the ICC’s relationship with its host state and with a key situation country that has historically supported the Court’s work.  This post considers the asylum claim in the broader context of its political implications for state party cooperation with the ICC.

The Asylum Claims: Recent Developments

This blog has been following developments pertaining to the defense witnesses seeking asylum: see the following posts from June 6, June 16, and June 23.  The tensions between the ICC’s competing obligations were pointed out here:  namely, the obligation to protect witnesses under Article 64(2) and the obligation under Article 93(7) to return witnesses to their country of origin immediately after testifying.  Trial Chamber II has since attempted to resolve this tension by ordering a series of measures to be implemented in the DRC that it claims would meet the Court’s obligations to protect its witnesses, which are discussed here.  The DRC has indicated its willingness to cooperate with these measures in observations transmitted by the Registry on August 23.  For the legal representatives of the asylum seekers, however, the ICC security analyses on which these protection recommendations are based should not be used for the asylum claim; instead they argue that the Dutch state has an obligation to undertake its own risk assessment.  For the Dutch authorities, undertaking an assessment would require addressing the substance of the asylum claim rather than awaiting the outcome of ICC proceedings.  Given the potential implications of the asylum decision for future ICC witnesses, Dutch ministry officials have been publicly engaging with the Court on these issues.  No judge has been appointed to the domestic asylum case, however, and an attorney for the asylum seekers claims that the claim may not be adjudicated for some time – possibly after the Congolese elections that are currently scheduled for November 28, 2011.

The Political Context in the DRC

The asylum issue has highlighted aspects of the broader political context in which the ICC’s intervention takes place in the DRC.  Depending on their outcome, the upcoming presidential and legislative elections may bear upon the witnesses’ claims.  As discussed here , the three witnesses gave testimony implicating the Congolese government under current President Joseph Kabila in the Bogoro massacre, which is the subject of the case against Katanga and Ngudjolo.   If the Kabila government were to lose the elections, the basis of the witnesses’ asylum claims could be lost as well. 

Meanwhile, the asylum issue has affected relations between the Court and the Congolese government.  The government has historically been supportive of the Court:  President Kabila originally referred the Congo situation to the ICC, and Congolese authorities maintain that they have consistently cooperated with the ICC to facilitate its work.  There have been recent signs of strained relations:  at the status conference of May 12, 2011, a Registry representative told the trial chamber that the DRC authorities had ‘deplored’ the fact that they were not invited to the conference.[i]  In a filing dated June 15, 2011, the Congolese Minister of Justice and Human Rights suggested that Trial Chamber II had violated the ICC’s mandate.[ii]  In its most recent submissions the Congolese authorities registered frustration with the delayed return of the witnesses, who had previously been incarcerated in the DRC awaiting trial before military tribunals under Congolese law.  Trial Chamber II’s most recent decision documents this frustration, noting that “after expressing its dissatisfaction” with the delay in returning witnesses, the DRC agreed to comply with the protective measures upon the witnesses’ return to the DRC.[iii]

Reactions within the DRC following the asylum applications further indicate this strain.  During an interview in Kinshasa in June, one magistrate from the high military courts noted that the Congolese government was surprised that the witnesses had sought asylum in the Netherlands.[iv]  The magistrate claimed that the Court had failed to respect the Congolese government’s position despite its history of cooperation with the ICC.  The official explained that while the DRC has been very cooperative in sharing information with the ICC, the relationship is not symmetrical:  when the DRC requests information from the ICC the Court sometimes fails to respond or assist, invoking reasons of security.  Another magistrate from the high military courts noted that while the ICC enjoyed considerable support within the Congo in the early stages, this support has since waned.[v]  This position was echoed by representatives of the Comité Mixte de Justice, a coordinating body for the Congolese judicial system and donor governments.[vi]  Although the Congolese government continues to substantively cooperate with the ICC, as indicated in its most recent filing, the witness asylum issue has strained relations between the Court and a historically supportive state party.

The asylum issue is also unfolding against the backdrop of ongoing domestic efforts to pass implementing legislation for the Rome Statute of the ICC and to establish a hybrid Special Court with sui generis jurisdiction over international crimes.   The implementing legislation, which seeks to harmonize domestic law with the Rome Statute, has been under negotiation for years in the Congolese parliament.  The spring 2011 parliamentary session failed to make any tangible progress on the draft implementation law.  It is unlikely to be considered again until after the upcoming November elections, and the political support it receives thereafter will depend in large part upon the composition of the new legislature and government.  Had it been passed, the implementation law would have helped to clarify issues of cooperation between the DRC and the ICC by specifying which Congolese authorities are responsible for cooperation issues and by adapting aspects of the criminal justice system – both its civilian and military justice jurisdictions – to align with relevant articles of the Rome Statute and other international treaties.

Trial Chamber II’s decision of August 24 requests the ICC Registry to consult with Dutch and Congolese authorities regarding custody of the witnesses and to file a report with the Chamber by mid-September.  The relationship between the ICC and these two state parties – its host state of the Netherlands and the Democratic Republic of Congo – will continue to attract attention while the witness asylum issue remains unresolved.

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