The Dutch state is violating the human rights of three Congolese men who have applied for asylum in the Netherlands, their lawyers say. The men testified before the International Criminal Court (ICC) in defense of Germain Katanga and Mathieu Ngudjolo Chui.
Before coming to testify, they had been imprisoned in the Democratic Republic of the Congo (DRC) for their alleged role in the murder of UN Peacekeepers. With agreement from the DRC, the men were transferred to the ICC detention center in The Hague and detained there while they testified before the ICC. After their testimony, the men requested asylum in the Netherlands. They have remained in the ICC detention center pending their Dutch asylum applications. The Dutch authorities have refused to take custody of the men and insist they remain in the ICC detention center.
Böhler law firm, based in Amsterdam, has announced that two of its lawyers will argue before the Dutch courts that the Dutch refusal to take action regarding the ongoing detention of the witnesses is a violation of their human rights. The lawyers will be requesting interim relief before the District Court of The Hague during a hearing on September 12, 2012.
Controversy over Detention
The men, who are associated with Congolese armed militias, were originally detained in the DRC in 2005 for crimes allegedly committed in connection with the Ituri conflict. In 2011, the men were transferred to The Hague to testify for the defense in the ICC trial of Germain Katanga and Mathieu Ngudjolo Chui, who are on trial for war crimes and crimes against humanity allegedly committed in the DRC in 2003. The witnesses testified that Joseph Kabila, President of the DRC, was responsible for crimes committed in the Ituri region of the DRC. They claim that they fear they would face human rights violations if they were returned to the DRC because of their testimony.
As reported on this blog, the asylum application has caused tensions and conflict between the ICC, the DRC, and the Netherlands. One contentious issue is where the witnesses should be housed while they await the outcome of their asylum claims. In an earlier decision, a Dutch court ruled that the witnesses’ applications must be processed through the standard Dutch asylum process, which can take years to complete. An ICC Trial Chamber has held that the men would not be returned to the DRC pending their application procedure. Their lawyers requested that the men be settled on Dutch territory while they await the results of their application, but the Dutch government refused the request. Although the ICC has invited the Netherlands to take action regarding the detention of the witnesses, the Netherlands has refused and demands that the men remain in the ICC detention center. The ICC cannot release the men into the Dutch territory without the cooperation of the Dutch government, a Member State of the Rome Statute and the Host State for the ICC.
Violation of Human Rights
Their lawyers argue that this prolonged detention, without any proper charges against them and without a valid reason, violates Article 5 (the right to liberty and security of person) and Article 13 (right to effective remedy before a national authority) of the European Convention on Human Rights. During the September hearing, the witnesses’ lawyers will demand the Dutch state to explain their reasons for not allowing the ICC to release the men.
The witnesses’ Duty Counsel have petitioned the Court to make a formal request to the Dutch authorities for transportation of the witnesses to appear before The Hague District Court for the purposes of this hearing. Dutch authorities have agreed to cooperate in transporting the detained witnesses if the ICC will provide a formal request under Article 44(3) of the ICC Headquarters Agreement.