The case of four Congolese defense witnesses, who briefly after testifying at the International Criminal Court (ICC) applied for asylum in the Netherlands, has been discussed extensively on KatangaTrial.org and elsewhere.  This post offers a discussion of possible scenarios that could arise depending on the result of their application before Dutch immigration authorities.

As reported here in December 2011, the Amsterdam District Court ordered the Dutch government to come to a decision on their asylum applications by June 28, 2012. At the moment of writing no determination has reportedly been made. Below I would like to share some thoughts on the possible outcomes of these procedures. I do not intend to predict the most likely outcome. I do not have any inside knowledge and consequently do not know all details of the case. Instead, I would like to think through what the possible consequences of the three mentioned outcomes may be and argue that basically any scenario unfolding from this Gordian knot leads to a situation that is likely to be perceived as highly undesirable by the Netherlands, the Democratic Republic of the Congo (DRC) as well as the ICC.

An Asylum Permit is Granted

The witnesses will be granted refugee status in the Netherlandsif they are able to demonstrate that they have a well-founded fear of being persecuted because of their race, religion, nationality, political opinion or membership in a particular social group upon being returned to the DRC. Apart from receiving this so-called “A-status,” the witnesses may also qualify for other (temporary) residence permits mentioned in Article 29 of the Aliens Act (Vreemdelingenwet). In particular, the witnesses could be granted a “B-status” if they demonstrate that they have well-founded reasons to fear that they run a real risk, after repatriation to their country of origin or continuous residency, to be exposed to torture, inhuman or degrading treatment or punishment. Receiving either of these statuses would obviously be the preferable outcome for the witnesses.

For all other actors involved, however, this outcome would be highly complicated and is likely to lead to substantial tensions between them. Even if they were granted refugee status, the question of their detention in the ICC detention facility would remain an issue. Considering that in July 2011 the Katanga trial chamber warned that the processing of their asylum applications must “in no way cause any unreasonable delay to their detention,” one might expect the court to release them.

This would be a Catch-22 situation though with serious political consequences in the Netherlandsand the DRC. Not releasing them would infringe basic human rights, while release could seriously impair the relationship between the ICC, the DRC, and the Netherlands. The Dutch government for example, would be subject to critical questions from parliament about how the government facilitated the transfer of Congolese militia members from a filthy Kinshasa prison cell to a subsidized and clean “Rijtjeshuis” (terraced house) in, say, Gouda? The perspective of Congolese parliamentarians would not differ much. How could it happen that their government facilitated the transfer of Congolese militia members from our filthy Kinshasa prison cell to a Dutch subsidized and clean “Rijtjeshuis” in Gouda? Indeed, if asylum is finally granted, this might start a more fundamental discussion in the Netherlands and the DRC about the pros and cons of co-operation with the ICC.

No Asylum Permit is Granted

If the Dutch immigration authorities decide that the applicants have not sufficiently substantiated their asylum claim, this would not necessarily mean that the witnesses will immediately be sent back to the DRC or that problems for the ICC, the Netherlands, and DRC would cease to exist. In light of the Amsterdam District Court ruling that the witnesses have access to the regular Dutch asylum procedure, the witnesses also have access to appeal. An initial negative decision on the asylum application would thus most likely lead to an appeal to the District Court, followed by the Council of State and possibly even the European Court of Human Rights (ECtHR). The whole appeal process can take considerable time—probably years rather than months.

The witnesses’ counsel would at this stage probably argue that in the meantime the applicants could not be transferred back to the DRC because they would risk being exposed to treatment contrary to Article 3 of the ECtHR. If faced with an appeal, the witnesses’ counsel would in all likelihood also address the question of their continuous detention at the ICC. Again, not releasing them would lead to a violation of basic human rights. Release, on the other hand, could mean that the witnesses could go underground and move to other European countries. In the Netherlands, asylum seekers are not detained during their asylum procedure. They are issued a temporary residence permit and can move around freely. Although they are not allowed to cross any borders, in actual practice this is not very difficult because of the Schengen Agreement allowing free movement across many European borders (meaning passports are not always checked at border crossings). Should the witnesses indeed leave the Netherlands, the question would arise whether the Dutch authorities would be able to trace and apprehend them. By that time they could be anywhere from Madrid to Brussels to Rome. This outcome is clearly undesirable from the point of view of the ICC, the DRC, and the Netherlands.

Exclusion from Refugee Protection

On the basis of Article 1F(a) of the Refugee Convention, no refugee status can be granted when there are “serious reasons for considering” that the applicant has committed war crimes, crimes against humanity, or genocide. The standard of proof is much lower than the “beyond reasonable doubt” threshold to come to a criminal conviction and it is not exceptional that applicants in the Netherlands are excluded on the basis of their (high level) position in a militia (information which is often presented by the applicants themselves during the procedure), coupled with publicly available reports that state that (the particular unit within) the organization the applicant has worked for was responsible for committing international crimes at the time the applicant worked for the organization. Examples of individuals who have been excluded range from high-ranking state officials to drivers who handed over suspects resulting in violence against the suspects.

Based on their curricula vitae it is not unthinkable that some of the Congolese witnesses would qualify for exclusion. Some held high level positions in militias in Congo. One witness, for example, acted as President of the Front des Nationalistes et Intégrationnistes (FNI). According to Human Rights Watch (HRW) and the UN, this militia is responsible for numerous rapes, the killing of hundreds of civilians, and the killing and abducting of Nepalese UN Blue helmets. Another witness is said to be a former secret agent of the Congolese government and founding member of FNI, while the Security Council states a third witness, was the Commander of the Front Populaire pour la Justice au Congo (FPJC), another militia associated with serious human rights violations in the Ituri region.

Like the other scenarios, exclusion from refugee status could be problematic for the Netherlands, the DRC, and the ICC. It would quite likely lead to appeal procedures, as discussed above. Should the exclusion decision be confirmed on appeal, it would mean that the witnesses are not granted legal status to stay in the Netherlands. At the same time, it might be decided that they cannot be deported to the DRC because they risk facing ill treatment. They would then be in a “legal limbo.” They would be ordered to leave the Netherlands, but at the same time the Dutch government would not be allowed to deport them. The witnesses would in that case join a group of dozens of other alleged Afghan war criminals and Rwandan génocidaires living in a similar situation—excluded from refugee status but unable to be returned home. However, the difference is that these Afghans and Rwandans spontaneously and often illegally managed to enter the Netherlands, whereas the Congolese were transported into the country with the knowledge and permission of the Dutch authorities. This could lead to political backlash for the Netherlands, the DRC, and the ICC.

To Conclude

The asylum issue has, as described above, created significant tensions for the Netherlands, the DRC, and the ICC. On the one hand, the Dutch government wants to be a good host to the ICC and facilitate the course of international criminal justice where possible. On the other hand, it has to take into account principles of protection in refugee and human rights law, national interests, diplomatic relations and—not to overlook—national political sentiments.

This case demonstrates that the collective responsibility of the international community to host ICC witnesses in need of protection could de facto turn into an exclusively Dutch responsibility. This resembles what Tanzania is currently experiencing with regards to acquitted defendants. Since no other countries are willing to share the burden of hosting acquitted defendants, Tanzania now hosts an ICTR-financed safe house for such persons in Arusha. With this perspective in mind, the Dutch government could, together with the ICC, begin to consider whether, how and where to locate such a safe house to host their witnesses.

Joris van Wijk is an assistant professor Criminology at VU University Amsterdam. The author will provide a more substantial analysis on the consequences of situations in which international criminal law collides with principles of international protection in an upcoming issue of the Leiden Journal of International Law.