In May 2011, four International Criminal Court (ICC) witnesses filed applications for asylum in the Netherlands. The witnesses had been brought to The Hague from a prison in the Democratic Republic of the Congo (DRC), where they had been imprisoned for over five years for their alleged role in the murder of UN peacekeepers.

They were brought here to testify for the defendants in the trial of Thomas Lubanga as well as the Germain Katanga and Mathieu Ngudjolo Chui trial. The witnesses were supposed to be returned to the DRC after their testimony. However, they claimed that if they returned to the DRC, they would face mistreatment and human rights abuses—and possibly death—because of their testimony.

Three of the witnesses, Floribert Njabu, Pierre Célestin Mbodina Iribi, and Sharif Manda Ndadza Dz’Na, testified before Trial Chamber II in the Katanga-Ngudjolo trial. Their asylum claims have been discussed extensively on www.katangatrial.org: Three Defense Witnesses Blame the DRC for Bogoro Attack, then Seek Asylum in the Netherlands; Three Defense Witnesses Blame the DRC for Bogoro Attack, Part II; Trial Chamber Orders Protective Measures, Says Witnesses Could be Returned to DRC if Asylum Claim Rejected; and Judges Decide that Detained Witness Could be Securely Returned to the DRC. One of the witnesses, Djokaba Lambi Longba, testified before Trial Chamber I in the Lubanga trial. His testimony has been previously described on the www.lubangatrial.org here.

This issue is novel and groundbreaking at the ICC. It raises issues of cooperation between three international players: the ICC; its Host State, the Netherlands; and the DRC, where the ICC’s Office of The Prosecutor has ongoing investigations. It also touches upon issues of human rights, international asylum law, relationships between internal Dutch government authorities, Dutch domestic law, and important political considerations. How these witnesses are treated, both by the ICC Trial Chambers and by Dutch authorities will set a precedent for the future.

Moreover, adding to the complication, it is not clear whether the ICC Trial Chambers will take a unified approach. The two Trial Chambers, which are not obligated to follow the decisions of the other, have taken different approaches to this unique problem. The Appeals Chamber has not weighed in, denying a request for instructions on how to appeal a Trial Chamber II decision submitted by the Netherlands. The approach of Trial Chamber II has been described elsewhere (see above, postings on www.katangatrial.org). This post covers developments in the case before Trial Chamber I in the Lubanga case. 

Trial Chamber I Orders Longba Back to DRC

In October, the Lubanga Trial Chamber ordered that the Registry send Longba back to the DRC, in spite of his pending Dutch asylum application. Earlier, the Chamber had temporarily deferred the witness’ return. The Chamber had held that under Article 21 of the Rome Statute, it had the obligation to ensure that the witness be provided with a real (as opposed to theoretical) opportunity to make a claim for asylum and to give the Dutch authorities the chance to consider the asylum application before the witness returned to the DRC. The Trial Chamber held that if the Dutch authorities thought the witness’ asylum claim justified deferring his return to the DRC, the Court would give custody of Longba to the Netherlands, since the ICC would then “have no continuing power to detain him.”

The Chamber had then ordered the Registry to consult with the Dutch authorities about transferring Longba into the control of the Netherlands. Thus, transferring custody of Longba was contingent upon the Dutch authorities’ intended to defer his departure pending a decision on his asylum claim.

After this order was rendered, the witness asked the Chamber to reconsider. He claimed that his health would be endangered if he were transferred to the Dutch authorities. He was concerned that if transferred, the Dutch might not respect the rights usually given to asylum seekers because of the special nature of this case.

The Netherlands also thought Longba should remain in ICC custody. The Netherlands refused to consult with the Registry on the transfer. It did not intend to defer Longba’s return to the DRC, it submitted to the Chamber.  It was the ICC’s responsibility to delay Longba’s transfer until his asylum application was complete, the Dutch argued.

The Netherlands considered that the witness should remain at the ICC Detention Center throughout the asylum proceedings. The Netherlands argued that Longba was transferred to the Detention Center according to an agreement between the ICC and the DRC, and that this did not mean the Netherlands was obliged to accept an illegal undocumented foreigner into its territory. Moreover, according to the Netherlands, it does not have jurisdiction to put Longba into custody while his asylum application is being considered.

Based on these submissions from the Netherlands, the Trial Chamber decided that the Registry should return Longba to the DRC. The Chamber reasoned that deferring his departure had been subject to the condition that the Netherlands take custody of Longba pending a decision on his asylum application. The Chamber considered that by giving the Netherlands the opportunity to take custody of Longba—which the Netherlands refused—the Chamber had discharged its duties under Article 21(3) of the Rome Statute.

The Trial Chamber therefore ordered the Registry to proceed with arrangements to send the witness back to the DRC. It is now up to the Netherlands to decide whether it is necessary to intervene to take control of the witness until his asylum application has been decided, the Chamber concluded.

Longba Argues He Should be Transferred to Dutch Authorities

Now Longba has changed his mind and has requested that Trial Chamber I revoke its return order and instead, order his transfer to Dutch custody. Asylum proceedings have begun, but there is pending litigation about the nature and scope of the proceedings, counsel for Longba contends. The Dutch want to hold “quasi” asylum proceedings in the ICC Detention Center.

This means that according to the decision of the Trial Chamber, the witness’ departure for the DRC must be suspended and he must be transferred to the Dutch authorities, they argue. This hasn’t happened, and counsel for the witness claims that it is because the Dutch authorities are intentionally trying to deprive Longba of protection under Dutch law.

Unlike in the Katanga-Ngudjolo case, the Trial Chamber in the Lubanga case accepted an amicus brief from the two Dutch attorneys who are representing all four witnesses. The brief argued that Longba should be transferred to the Dutch authorities. The witness will face great security risks because of his testimony if he is returned, counsel claims.

The brief is summarized below.

Progress of Dutch Asylum Proceedings

Before the Dutch immigration authorities, Longba’s asylum case has been joined with the cases of the other three witnesses. However, it is not clear to what extent the brief’s submissions regarding Longba apply to the Katanga-Ngudjolo witnesses.

In September, the Dutch immigration authorities confirmed that the asylum request would be processed under national law and began to work with the witness’ counsel to find dates for asylum hearings. The Dutch government confirmed that the Dutch national asylum procedure is fully accessible to ICC witnesses. However, according to the amicus brief, the immigration authorities then claimed that they were being delayed because of the need to negotiate with the Registry of the ICC.

At the end of September, the immigration authorities changed tracks. According to the witness’ lawyers, the immigration authorities told the witnesses that their applications were no longer going to be considered as national asylum requests, but were instead regarded as “requests for protection.” The immigration authorities did not consider that the Dutch asylum procedure was applicable in these cases, and the proceedings were to be held within the ICC Detention Center. Hearings are scheduled to take place in November and December, according to the amicus brief.

Counsel for the witnesses argued that the decision to create an “extraordinary quasi asylum procedure” was “not supported by any legal reasoning or adequate motivation.” They claim that the Dutch government’s insistence that the asylum proceedings be conducted in the ICC Detention Center is a bath faith abuse of the Detention Center. They sought Dutch judicial review of the detention issue, but the Dutch District Court ruled in favor of the Netherlands. Counsel are appealing that decision, but argue before the ICC that Trial Chamber I should order the release Longba to the Netherlands because, having initiated asylum proceedings, the Dutch government has accepted the presence of the witness on Dutch territory. 

It appears as though there is little information about how the Dutch authorities will process a “request for protection.” It is not clear whether this will closely follow standard asylum procedures, or whether it will diverge significantly.

Counsel for the witnesses, concerned about this vagueness, raised several questions with the Dutch authorities about this novel procedure, including whether:

• The normal procedural safeguards would be applicable;
• The European Asylum System was applicable;
• The Congolese witnesses would be able to receive effective protection via a refugee status if the well-founded fear of persecution is established;
• The Congolese witnesses would be able to attend hearings if judicial review is necessary;
• If an appeal would have a suspensive effect in conformity with international standards of asylum procedures; and
• Why an administrative court should declare itself competent to pass judgment on an asylum procedure with “absolutely no formal basis in Dutch or international law.

Is the Netherlands Violating the European Convention on Human Rights?

Counsel for the witnesses argues that the “extraordinary” quasi asylum practice runs contrary to rights protected by the European Convention on Human Rights (ECHR).

Article 3 of the ECHR prohibits torture and inhuman or degrading treatment or punishment. This, counsel for the witnesses argue, is the key provision at issue in this case.  The European Court of Human Rights (ECtHR) has held that Article 13 of the ECHR guarantees the availability of a national level remedy to enforce ECHR rights, although states “are afforded some discretion” in how they will provide that remedy.[i]

In the amicus brief, counsel argued that with regards to Article 3, the ECtHR has held that an effective remedy under Article 13 would require the following:

1. Independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the witness’ expulsion to the DRC; and
2.  A remedy with automatic suspensive effect (i.e., the remedy would automatically suspend Longba’s removal from the Netherlands until the proceedings had concluded).

Even if the Dutch authorities are allowed “some discretion” in how they conform to their ECHR obligations, counsel for the witnesses claim that the quasi asylum procedure may not meet the effective requirements. There is no guarantee that it will provide access to a judicial body or a remedy with automatic suspensive effect, they argue. The quasi asylum procedure “gives the Netherlands complete discretion” about how the witnesses will be dealt with, counsel argued. Moreover, they protest, there is no justification for this new procedure.

Increasing Threats in the DRC

Earlier this year, upon orders from the Trial Chamber in the Katanga-Ngudjolo trial, the ICC Registry and the DRC authorities worked together to develop security measures so that if the Katanga-Ngudjolo witnesses were returned, they would be adequately protected. In the Lubanga amicus brief, counsel argue that the Court should reassess the Congolese assurances about the security measures, which were related only to the detention of the witnesses.

In addition to general complaints about the DRC’s human rights record, they point to the recent intimidation and physical attack of family members of the four witnesses as an example of the threats the witnesses—and their families—face in the DRC.

The brief states that one witness’ wife was threatened twice by “individuals belonging to [DRC President] Kabila’s party and regime.” The attackers, they claim, specifically referred to the witness’ role in the ICC case. In another incident, four soldiers from the Congolese Army (FARDC) violently attacked the home of one of the witnesses. As a result, a 13-year-old family member of one of the witnesses died.

These attacks are evidence that the DRC assurances regarding the safety of the witnesses have “no value,” counsel contends.

Dutch Will Send Longba Back to DRC if Claim Fails, Counsel Argue

Counsel for the witness argues that the ICC should not be concerned about failing to fulfill its duty to return the witness to the DRC if the Dutch authorities reject the asylum claim.

“There is an increasingly strict Dutch policy to expel any illegal alien on its territory,” counsel note. Should the asylum application fail, counsel reassure, a rejection of the asylum application would trigger an immediate return to the DRC. This would mean that the ICC’s obligations to return the witnesses would be met, the counsel contends.

The amicus brief requests that if the witness is not released, the witness be allowed to attend his Dutch asylum proceedings and that the ICC aid in his transfer to such hearings. Counsel also request that the ICC facilitate family visits for the four witnesses because they have been at the ICC Detention Center for eight months and miss their families.

At the time of posting, the Trial Chamber in the Lubanga case had not made any additional orders regarding Longba. It remains to be seen whether the witnesses from the Katanga-Ngudjolo case and the Lubanga case will be afforded the same treatment by the ICC, and how their asylum applications will be handled by the Dutch authorities.