A majority of the Appeals Chamber of the International Criminal Court (ICC), Judge Sang-Hyun Song dissenting, has ordered three detained witnesses to be returned immediately to the Democratic Republic of the Congo (DRC). The witnesses have been detained at the ICC Detention Center since they arrived in The Hague in March 2011 to testify in the trial of Germain Katanga and Mathieu Ngudjolo Chui.

Katanga and Ngudjolo are accused of committing war crimes and crimes against humanity in Bogoro, a village in the DRC. In December 2012, after the cases were severed, Ngudjolo was acquitted of all charges; he awaits the appeal judgment in his case. Germain Katanga is still on trial, awaiting final judgment.

Before coming to testify, the witnesses had been imprisoned in the DRC pending charges related to the conflict there. Therefore, they were incarcerated at the ICC Detention Center during their time in The Hague.

The witnesses’ detention has created a host of legal complications and debates involving the ICC, Dutch national courts, the DRC government, and the European Court of Human Rights. Appeals for the witnesses’ asylum applications, which were initially rejected, are currently pending before Dutch immigration courts. Dutch authorities have repeatedly argued that the witnesses should remain at the ICC Detention Centre until their asylum proceedings are completed. The witnesses’ attorneys say this could mean the witnesses are detained—allegedly without charges—for years to come. The DRC government contends that the witnesses should have been returned to the DRC immediately when they finished their testimony.

During their testimony, the witnesses implicated the president of the DRC, Joseph Kabila, in crimes committed in Bogoro. For this, they claim, they will face torture or death if they are returned to the DRC. Therefore, they have claimed asylum in the Netherlands.

Returned to the DRC

The Appeals Chamber majority ordered the Registrar of the ICC to take the necessary steps to return the witnesses, without delay, to the DRC. The Registrar is to give the Netherlands the opportunity to take any necessary steps related to the witnesses’ pending asylum applications. This suggests the Netherlands may intervene in the transfer, if the Dutch authorities consider that it would constitute a violation of the witnesses’ human rights. The Registrar must also confirm that the protective measures in place in the DRC are adequate—if they are not, the Registrar must notify the Appeals Chamber.

The Appeals Chamber majority issued its order proprio motu, or acting on its own accord. The Appeals Chamber majority thought that it was necessary to resolve the situation of the witnesses, given that the witnesses have been in the ICC Detention Center for over two years since their testimony concluded. Moreover, the situation raises serious concerns about the ICC’s authority to detain individuals and about its obligations to states parties, the chamber noted.

According to an agreement ICC signed with the DRC and Article 93 Rome Statute, the witnesses should have been returned to the DRC as soon as they completed their testimony. Nevertheless, the trial chamber previously found that in this case, it could not order the return of the witnesses because it might violate their human rights, which are protected explicitly in Article 21 of the Rome Statute.

Protecting Witnesses’ Human Rights

The right to apply for asylum, the principle of non-refoulment, and the right to effective remedy are internationally recognized human rights, the Appeals Chamber conceded. However, in this case, they are all related to the asylum applications pending in the Netherlands. The ICC does not have jurisdiction over any issues pertaining to the witnesses’ asylum claims—this remains solely a matter for the Dutch authorities, the Appeals Chamber majority considered. The majority therefore limited the ICC’s reach, finding that the ICC does not have the jurisdiction to ensure the protection of human rights of its witnesses in their proceedings before other courts.

As noted by the Appeals Chamber, this is complicated by the fact that the witnesses are in the custody of the ICC, which is located in the Netherlands. Therefore, the majority stated, any decision of the ICC cannot impinge upon the Netherlands’ ability to protect the witnesses’ rights regarding their Dutch asylum claims. According to the majority, while the ICC is not responsible for the protection of its witnesses’ human rights before other courts, the ICC’s decisions cannot make it harder for other authorities to ensure their protection.

Nevertheless, the Appeals Chamber majority said, the continued detention of the witnesses at the ICC is not an appropriate solution to this problem.

Even though Article 21 requires the ICC to interpret and apply the Rome Statute in conformity with international human rights, it does not require the court to violate its obligations under Article 93, the Appeals Chamber majority reasoned. Otherwise, the majority said, the ICC would have a hard time signing cooperation agreements with states and obtaining necessary testimony and evidence in its cases.

Also, the Appeals Chamber majority noted, the ICC only has the authority to detain people when the detention is related to judicial proceedings before the ICC. In this case, their continued detention is related to their Dutch asylum proceedings. According to the majority, Article 21 does not require, nor permit, the ICC to detain people beyond what is stated in the Rome Statute.

“The [ICC] cannot serve as an administrative detention unit for asylum seekers or persons otherwise involved in judicial proceedings with the Host State or any other state,” the majority noted.

According to Rule 192 of the Rules of Procedure and Evidence, as well as Article 44 of the Host State Agreement between the ICC and the Netherlands, the witnesses will be under the control and in the physical custody of the Netherlands during their transfer back to the DRC, the Appeals Chamber said. Therefore, it is up to the Netherlands to decide whether it will need to intervene with their transfer in order to protect their rights during their asylum proceedings.

The Appeals Chamber acknowledged that this might create legal conflicts for the Netherlands but found that it was up to the Netherlands to find a resolution. The Appeals Chamber stressed “that Article 21(3) of the Statute does not require the court to interpret its legal texts so as to avoid situations where the Netherlands may consider it necessary to take independent steps in order to fulfill its own legal obligations in relation to the detained witnesses.”

Therefore, the majority ordered the Registrar to take the steps necessary to return the witnesses to the DRC, in consultation with the Netherlands and after assuring their safety would be guaranteed in the DRC.

Judge Song dissented. He considered that the Appeals Chamber should have remanded the issue back to the trial chamber for it to decide on the legality of the witnesses’ detention.