On October 9, 2012, the European Court of Human Rights (ECtHR) made a ruling in the case of Bède Djokaba Lambi Longa against the Netherlands. Mr. Longa, a witness before the International Criminal Court (ICC) in the Thomas Lubanga trial, had petitioned the human rights court to hear his case on the unlawfulness of his detention and render a verdict. Mr. Longa complained that he was being unlawfully held on Dutch soil and denied an opportunity to seek his release. The ECtHR dismissed the application.

Mr. Longa was one of four witnesses transferred in 2011 to the ICC from detention in the Democratic Republic of the Congo (DRC) to serve as defense witnesses in two trials before the ICC. Mr. Longa testified in the Lubanga trial; the other three witnesses testified in the trial of Germain Katanga and Mathieu Ngudjolo Chui. All four witnesses implicated the president of the DRC, Joseph Kabila, in crimes committed in the DRC’s Ituri region. They claimed they feared reprisals for their testimony if they were returned to the DRC.

As discussed in previous posts, their asylum applications raised a number of novel legal issues, in particular about who has jurisdiction over the four men. The two different ICC Trial Chambers have treated these issues differently.

The Lubanga Trial Chamber held that it had satisfied its obligations to Mr. Longa and that he should be returned to the DRC as soon as possible. It was up to the Netherlands to intervene with the transfer back to the DRC if it intended to take custody of the witness. This decision was rendered over a year ago, in September 2011.

In the Katanga-Ngudjolo case, Trial Chamber II held that the return of the other witnesses was impossible while their asylum applications were pending. Trial Chamber II considered their detention a critical issue and ordered consultations between the ICC, the Netherlands, and the DRC to find a solution. However, the Netherlands refused to engage in such consultations, maintaining that the witnesses should remain in the ICC’s detention.

Longa’s Claims about Unlawful Detention

Before the ECtHR, Mr. Longa argued that his detention in the Democratic Republic of the Congo expired on July 2, 2007 and had not been renewed. The ICC had no legal grounds to keep him in detention after he completed giving evidence in April 2011, he claimed. The Dutch, he argued, had never made a claim that there was a legal basis for his detention under Dutch law. This, he claimed, constituted a violation of Article 5(1) of the European Convention on Human Rights (ECHR).

Mr. Longa argued that since the Netherlands had exercised jurisdiction over his asylum claim, it could and should exercise jurisdiction over his detention. Failing to do so amounted to an impermissible and arbitrary exercise of “a la care-jurisdiction,” he maintained.

According to the witness, the ECHR applies in this case because the witness was detained in the territory of the Netherlands. Dutch law forms the starting point for the applicable law in the premises of the ICC, and Articles 93 and 94 of the Dutch constitution provide for direct application of the ECHR as Dutch law. This overrides Section 88 of the Dutch ICC (Implementation) Act, which provides that Dutch law does not apply when it comes to ICC detention matters.

Mr. Longa also argued that the Netherlands held the sole power over his detention. ICC Trial Chamber I had acknowledged that it no longer had a valid reason for his detention but could not send him back to the DRC while his asylum application was pending. The Dutch had refused to even discuss his transfer to Dutch custody and had requested the ICC to continue his detention in the meantime, Mr. Longa claimed.

In the alternative, if the court found he had been lawfully detained, he argued that he had not been brought to trial within a reasonable time. This was a violation of Article 5(3) of the ECHR. The Dutch also violated Article 5(4) of the ECHR by failing to review the lawfulness of his detention, he maintained. Mr. Longa also argued that the Netherlands had violated Article 5(5), which provides that everyone who has been the victim of unlawful arrest or detention has a right to compensation.

The witness argued that regardless of who had authority over his detention, the Netherlands still had an obligation to protect his human rights. He claimed that the level of human rights protections guaranteed by the ICC was insufficient to deal with the unique circumstances of his case—a witness who had applied for asylum.

Mr. Longa also claimed that the ICC also failed to provide sufficient legal protections to its accused. Citing the Jean-Pierre Bemba Gombo case, Mr. Longa argued that even conditional release of ICC accused was impossible if no states were willing to accept him. In these cases, he argued, the Netherlands had a responsibility to step in. Complying with legal obligations pursuant to its agreements with the ICC in such cases was not in accordance with the requirements of the ECtHR, Mr. Longa maintained.

Important Public Policy Issue

According to the judgment, Mr. Longa withdrew his request for asylum on September 4, 2012, although it the judgment did not specify why. The ECtHR held that this withdrawal means the witness should drop his efforts to get the Netherlands to order his release. The witness did not inform the ECtHR of this development nor withdraw his ECtHR application.

Nevertheless, the court addressed his petition because it “touches on essential aspects of the functioning of international criminal tribunals having their seat within the territory of [an ECHR Member State] and invested with the power to keep individuals in custody.” It also considered that an answer was necessary given the “uncertainty” that has arisen from the September decision of a Dutch court to release witnesses from the Katanga trial from detention. Moreover, the ECtHR considered, it was important to answer the petition because of the important role its decisions play in contributing to the protection and respect of human rights and its mission to determine issues on public policy grounds.

ECtHR Finds the Netherlands is not Responsible

Due to these public policy concerns, the ECtHR decided the case on its merits. The court acknowledged that while jurisdiction is usually determined by territory, there are some exceptions. One exception involves international organizations with premises and immunities in the state’s territory.

The fact that the ICC detained Mr. Longa on Dutch soil is not in itself a sufficient reason to bring the issue into the jurisdiction of the Netherlands, the court found. As long as he is not returned to the DRC or handed over to the Netherlands, the court found, the agreement between the ICC and the DRC entered into under Article 93 of the Rome Statute is and remains the legal ground of his detention remains.

“There is thus no legal vacuum,” the ECtHR concluded.

The court grounded this finding in the ICC Trial Chamber I decision from December 2011 that ordered the return of the witness to the DRC once he was prepared to travel.

This is in keeping with previous cases heard before the ECtHR. In Galić v. the Netherlands and Blagojević v. the Netherlands, the court held that the sole fact that the ICTY had its headquarters in the Netherlands was not a sufficient reason to impute responsibility of alleged human rights violations to the Netherlands. In those cases, the court stressed that the ICTY was an international organization established by the UN Security Council, based on the principle of the respect for human rights and specifically designed to protect the rights of those indicted before it.

This case is different however, as acknowledged last month by a Dutch court. The UN Security Council did not establish the ICC, and the witnesses have argued that as witnesses they do not have access to the same human rights guarantees as accused. The ECtHR disagreed.

The ECtHR found that the availability of protection and security measures to witnesses was a way the ICC can ensure the protection of witness’ fundamental human rights. Whether or not the exercise of these measures actually protects those rights is not decisive in this case, the court found.

The human rights court concluded that the ECHR “does not impose on a State that has agreed to host an international criminal tribunal on its territory the burden or reviewing the lawfulness of deprivation of liberty under arrangements lawfully entered into between that tribunal and States not party to it.”

The court also found that the Netherlands has the right to control the entry, residence, and expulsion of aliens in its territory. It is under no obligation to allow foreign nationals to await the outcome of immigration proceedings on its territory. It therefore has no obligation to review Mr. Longa’s detention situation simply because it is hearing his asylum claim.

For these reasons, the court declared Mr. Longa’s application inadmissible.

Impact for Katanga-Ngudjolo Witnesses

One of the complicating factors regarding the asylum claims made by ICC witnesses is that they are being dealt with by multiple chambers in multiple court systems. Not only are there matters pending before many jurisdictions—the ICC, the Dutch courts, the DRC courts and the ECtHR—but also within those jurisdictions there are different chambers addressing the issue.

It is possible that four witnesses who were in relatively the same position vis-à-vis the ICC and the Netherlands will be treated disparately before the courts. While this is not uncommon, in this case it could have serious consequences for the witnesses, who claim that their lives would be in danger if they were returned to the DRC.

In addition to the different approaches of the ICC chambers, described above, the cases have proceeded independently through the Dutch courts. In September, a Dutch court ordered that the Katanga-Ngudjolo witnesses be released from the ICC. This new ECtHR decision could have a significant impact on a potential appeal in that case, as it absolves the Netherlands of responsibility for the witness’ detention.

Goran Sluiter, attorney for the witnesses, claims there is no relevance between the ECtHR case and the recent Dutch decision. He argues that because the two ICC Trial Chambers took different approaches to the detention issue, there are such different factual scenarios that the ECtHR decision wouldn’t apply to those three witnesses.