Three ICC witnesses who testified on behalf of Mathieu Ngudjolo Chui and Germain Katanga were released today from the ICC detention center into the custody of Dutch officials. The witnesses will be in Dutch custody pending the outcome of their asylum applications in the Netherlands.

The three witnesses, Floribert Ndjabu Ngabu, Sharif Manda Ndadza Dz’Na, and Pierre-Célestin Mbodina Iribi, had been detained in the DRC before they were transferred to the ICC detention center to testify for the defense of Katanga and Ngudjolo 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.

Despite a decision by the Appeals Chamber in January ordering their return to the DRC, the three witnesses were detained until today.

In the original order, the Appeals Chamber directed the Registry to “take the necessary steps to return [the witnesses] without delay to the Democratic Republic of the Congo.” The Appeals Chamber also ordered the Registry to “consult with The Netherlands and provide it with the opportunity to take any steps it determines to be necessary in respect of [their] pending asylum applications.”

However, in April, over two months later, the Duty Counsel for the witnesses informed the court in a confidential filing that the witnesses were still in detention at the ICC. In May, in another confidential filing, the witnesses’ Duty Counsel informed the court that one of the witnesses had started a hunger strike in protest of his situation and another witness was considering the same.

The Registry has submitted several confidential requests for guidance in the matter. It appears that the Registry had encountered problems with implementing the January 20 order, in particular in securing the cooperation of the Dutch authorities.

In its May 21 decision, the Appeals Chamber expressed “deep concern” that the witnesses remained in the ICC detention center four months after it had ordered them to be returned to the DRC. The chamber noted that:

[U]nder article 44(2) of the Headquarters Agreement, “The Netherlands are under an obligation to carry out, at the request of the Court, the transport of a person in custody from the Court’s premises to the point of departure from the host state. Under article 44(5) of the Headquarters Agreement, in situations where The Netherlands identified problems in respect of a request by the Court, ‘it shall consult with the Court, without delay, in order to resolve the matter’” (emphasis added by the Appeals Chamber).

The Appeals Chamber considered that the Registry’s request for guidance raised primarily administrative issues, which the chamber refused to address. It ordered the Registrar to immediately implement the January 20 order.

The Registrar concluded that he had received sufficient guarantees that the witnesses’ rights would be respected if they were returned to the DRC. This included a guarantee that no death penalty would be imposed against them and that their cases would be heard before the Congolese courts. However, according Goran Sluiter, counsel for the witnesses, there is a Dutch court order in force stating that the men cannot be returned to the DRC as it would threaten their safety and human rights. This should prevent their immediate return, he said.

Tensions between the ICC and the Netherlands

The recent turn of events signals that the Dutch officials have changed their position on the issue of the witnesses’ custody. Due to the standing Dutch court order that prevents their return, the Dutch authorities responsible for that transportation under the Headquarters Agreement would be unable to return the men to the DRC. They would then presumably remain in Dutch custody, a situation the Netherlands has vigorously tried to avoid since the witnesses first claimed asylum in the Netherlands.

The Netherlands also argued during an emergency hearing before national asylum courts for an interim measure to expel the witnesses from the Netherlands. The asylum judge in that case rejected the request, upholding the order that it was too dangerous for them to be returned.

If the witnesses ultimately remain in the Netherlands, it could seriously threaten the ICC’s relationship with the DRC. The DRC could terminate or cut back its cooperation with the court—including with respect to other protected witnesses in the DRC.

Dutch Asylum Proceedings Reaching Conclusion

The Dutch asylum proceedings continue. A final appeals hearing will be held on Thursday, June 5. The outcome of their case is far from certain. They may be denied asylum. In that case, they would then be in a legal vacuum, with no legal residence in the Netherlands but not able to be returned to the DRC.

If the asylum application is rejected and they are ordered by the Dutch authorities to be returned to the DRC, the witnesses could take their case to the European Court of Human Rights.