In late September, a Dutch court ruled that three witnesses who testified in the International Criminal Court (ICC) case involving Germain Katanga and Mathieu Ngudjolo Chui must be released from the ICC detention center while they await the outcome of their Dutch asylum claims. The three witnesses had been detained in the Democratic Republic of the Congo (DRC) before they were transferred to the ICC detention center to testify for the defense in May 2011.

During their testimony, they claimed that the president of the DRC, Joseph Kabila, was responsible for crimes committed in the country’s Ituri district. For this, the witnesses claimed they would be subject to human rights abuses and their lives would be in danger if they were returned to the DRC. They applied for asylum in the Netherlands, which has raised a number of novel legal and political issues for the ICC, the Netherlands, and the DRC.

One legal issue was whether their applications had to be treated like all other Dutch asylum applications. In late 2011, a Dutch court held that the asylum applications must be processed under normal Dutch asylum law (the Aliens Act 2000) and ordered that a decision on their applications must be made by June 28, 2012.

On June 11, the Dutch Minister for Immigration, Integration and Asylum stated that he intended to reject two of the asylum applications because are suspected of having committed crimes against humanity. As explained in a previous post, Article 1F of the Convention on the Status of Refugees provides that refugee status cannot be granted if there are “serious reasons for considering” that the applicant has committed war crimes or crimes against humanity. This is a relatively low standard of proof that can be met by referring to, inter alia, publically available human rights reports. Many of these reports implicate the witnesses in the commission of serious crimes in the DRC.

The two witnesses submitted their views on the matter and a decision is expected later this month. The Dutch authorities have not made any statements about their intentions regarding the third application to concerns about the witness’ health.

During these asylum proceedings, the witnesses remained in custody at the ICC detention center. The Katanga/Ngudjolo Trial Chamber had previously ruled that the ICC had met its security obligations stemming from their involvement with the court and that the witnesses could be returned to the DRC. However, the Trial Chamber held that the witnesses could not be returned while they were waiting for a decision on their asylum application. The Trial Chamber called on the Dutch to cooperate with the ICC to find a solution regarding their detention. The Dutch refused to cooperate, arguing that the witnesses should remain in ICC custody.

However, a Dutch court has now held that this detention is unlawful. The witnesses argued that they were in a legal vacuum and were being held without having faced any charges, either by the DRC, the ICC, or the Netherlands. This is contrary Articles 5 and 13 of the European Convention on Human Rights, they claimed. The witnesses argued that the Netherlands should take over their custody while they wait for the results of their asylum claims.

The Netherlands argued that it has no jurisdiction over the witnesses since their detention at the ICC arises out of agreements between the ICC and the DRC. The Dutch authorities based this in part on the European Court of Human Rights (ECtHR) case of Galić v. the Netherlands. In that case, Galić, an accused who was convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY), argued that his fair trial rights had been violated by the ICTY and that the Netherlands, as the ICTY host state, was responsible. The ECtHR held that actions of the ICTY could not be imputed to the host state based on the sole fact that the ICTY was based in the Netherlands. The ECtHR noted that the ICTY was purposefully designed to provide accused with fair trial rights guarantees.

The Dutch authorities also argued that an asylum application does not oblige them to take custody of the witnesses. Filing an asylum application does not create the right to stay in the Netherlands if the applicant is not a legal resident of the Netherlands, the Dutch authorities claimed. The Dutch authorities considered that the witnesses should remain in ICC custody until their asylum applications have been decided. According to Dutch legal experts, this could take years.

The Dutch court recognized that the witnesses are in a “desperate” detention situation that has been illegitimate since August 2011. There is no guarantee that the asylum proceedings will be concluded quickly, and neither the ICC nor the DRC are able to put an end to the situation, the Dutch court stated. The witnesses have “no prospect of release or trial within a reasonable time and it is unclear weather the lawfulness of their detention may be submitted to a competent judicial authority.”[1]

The Dutch court rejected the argument that the Netherlands has no jurisdiction over the witnesses.  It distinguished this case from the ECtHR case of Galić v. the Netherlands, noting that unlike the accused Galić, the applicants are witnesses brought to give testimony. Indeed, their detention precludes them from taking advantage of the procedural guarantees of the ICC, the Dutch court reasoned. This is reflected in the decisions of the ICC on the matter, the Dutch court said.

In this situation, the establishment of the ICC on Dutch territory offers sufficient grounds for the Netherlands to assume jurisdiction over the witnesses, the Dutch court found. According to the Dutch court, this is especially important given that the Dutch asylum procedures preclude the claimants from returning to the DRC.

The Dutch court noted that the witnesses cannot be punished for having made an asylum application. The Dutch court ordered the Netherlands authorities to consult with the ICC to put an end to the witness’ detention within four weeks. It is up to the Netherlands to take appropriate measures to ensure that the witnesses do not disappear or go underground, the Dutch court said. However, it is not clear whether the witnesses will be detained by the Netherlands upon their release from the ICC detention center.