Yesterday, in the International Criminal Court (ICC) trial of Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II ordered the Registry to put in place certain protective measures for three defense witnesses upon their return to the Democratic Republic of the Congo (DRC). The witnesses, who have been detained in the DRC for their alleged role in the murder of UN peacekeepers, testified that the Congolese government, including President Joseph Kabila, is responsible for the February 2003 attack on Bogoro. The three witnesses have argued that they will face security risks if they are sent back to prison in the DRC and have filed an application for asylum in the Netherlands.

A discussion and background to this issue can be found in previous posts, including the commentary from June 6, 2011.

Following a status conference held on May 12, 2011 about the asylum issue, the Chamber asked the Victims and Witnesses Unit  (VWU) whether its assessment of the witnesses’ risk had changed in light of the arguments raised during the conference. On May 17, the Registry submitted a new risk assessment to the Chamber. It maintained its previous assessment of the situation. Following observations from the Katanga defense team and counsel for the detained witnesses, the chamber ordered the Registry to contact the DRC authorities to discuss what protective measures could be implemented for these witnesses. The risk assessment and responses to it are discussed in more detail here.

On June 7, the Registry submitted a report on the outcome of its consultations with the DRC, which is discussed in more detail below. Shortly thereafter, on June 9, the Chamber issued a decision on the request of the three detained witnesses to have access to the Dutch asylum procedure. This decision is discussed here. The Chamber found that the assessment it is required to perform to protect witnesses is distinct from that performed by a State in assessing the risk of persecution under an asylum claim in order to respect the principle of non-refoulement.

It should also be recalled that the official position of the Dutch immigration authorities, according to representatives of the Dutch government during the status conference, was that the ICC’s determinations on witness protection and security would influence the decision of the immigration authorities. The Dutch authorities stated that the asylum claim could not be decided until the ICC has made findings on the witnesses’ security. According to the lawyers representing the witnesses in their asylum claim, this position is contrary to Dutch asylum law and practice.

In the latest decision, the Trial Chamber determined that a number of security measures proposed by the ICC Registry and endorsed by the DRC authorities would sufficiently protect the witnesses if they are returned. However, the Trial Chamber noted that the witnesses would only be returned to the DRC if their Dutch asylum application is refused. The fate of these witnesses, therefore, lies in the hands of the Dutch immigration authorities, who may rely on this decision when making their determinations in the asylum case.

The Chamber’s decision is summarized below.

Risks Purportedly Faced by the Witnesses

The Chamber outlined the risks the witnesses claim they will face if they are returned to the DRC. The Chamber stated:

The risk alleged by the detained witnesses is not defined with great precision. They identify several potential scenarios in which the authorities of the DRC might harm them directly or indirectly. In summary, they claim to fear

(a) that zealous pro-government militants, ostensibly not under the control of the DRC authorities, might harm them;

(b) that they might be summarily executed or disappeared, possibly under the guise of an attempted escape, poisoning, villainous crime or vengeance by alleged victims or militants loyal to the authorities;

(c) that they may be the subject of a show trial and be sentenced to the death penalty.

All these alleged potential threats are said to emanate, directly or indirectly, from the authorities of the DRC.

Whether any attempted harm to the witnesses was linked to their testimony or was caused by the DRC authorities, however, would be impossible to determined, the Chamber said.

“If the witnesses are to be returned to the DRC, they must therefore be protected against every potential source of danger that may be linked to their testimony before the Court,” the Chamber stated.

Protective Measures Suggested by the Registry

The decision detailed the proposals made by the Registry for protective measures it could put in place if the witnesses should be returned to the DRC. The Chamber also noted that the witnesses considered these proposals insufficient.

On June 7, 2011, the Registry submitted a report to the Chamber on the outcome of consultations it had with DRC authorities, including the focal point of the DRC for cooperation matters and the Director of the Centre pénitentiaire et de réhabilitation de Kinshasa (CPRK Makala). The Registry made several proposals for protective measures for the three witnesses:

• Housing all three witnesses in the ”aile 11″ of the CPRK Makala
• The possibility for the Court to make regular visits to the witnesses detained in the prison to ensure the conditions of their detention;
• The possibility to strengthen the cell doors of the witnesses detained at the expense of the Court, including by adding additional locks;
• Recruiting additional guards for “aile 11” and training them on the standards of prison conditions, at the expense of the Court;
• The addition of 1 to 2 cameras to monitor public areas of wing 11 at the expense of the Court;
• Improving sanitation in “aile 11” (the Registry noted that this is hardly comparable to a measure of protection.)

The Congolese authorities also raised the possibility of transferring the three detained witnesses to the officers’ quarters of another, recently renovated, detention center.

The Registry submitted that although there are risks inherent to being held in a prison environment, these risks were no greater to the witnesses for having given testimony before the ICC. The Registry considered that “the objective level of risk remains unchanged by the testimony.”

In particular, the Registry also noted that the publicity and international attention garnered by these recent proceedings will help protect their safety, especially considering the “new commitment by the Congolese authorities with regard to the safety of detained witnesses.”

Proposed Security Measures Insufficient, Witnesses Argue

The detained witnesses, however, do not consider these protective measures adequate. In observations submitted to the Trial Chamber, they argued that verbal assurances given by the Congolese authorities should be considered with care. In particular, they argued that the “real intention” of the DRC authorities makes the proposed measures “implausible.”

The measures will not protect them from the threat of harm from the “highest authorities of the DRC,” they claimed. They note that “l’aile 11” falls under the immediate authority of the special security adviser to the President of the DRC and is guarded by soldiers from the military intelligence agency (ex-DEMIAP, Détection Militaire des Activités Anti-Patrie).

They further noted that nothing obliges the Congolese authorities to allow the suggested visits by the Registry to ensure the conditions of their detention. Their status as civilians would prohibit their transfer to the other prisons suggested by the DRC, the witnesses averred.

DRC Promises not to Harm Witnesses

The DRC, however, submitted to the Trial Chamber that the DRC authorities have no intention of retaliating against the witnesses.

They claimed that they were “in total ignorance of the contents of statements made by the four witnesses” because the Court had adopted “measures ensuring strict confidentiality.” However, the Chamber noted that contrary to the DRC’s claims that it adopted strict security measures during the witnesses’ testimony, the three witnesses all testified in public. “The DRC authorities are thus perfectly capable of knowing the exact content of the testimonies of the three witnesses.”

The DRC assured the Chamber that a transfer to a new prison (Ndolo) would be possible (apparently irrespective of the witnesses’ civilian status). It also asserted that it accepted the protective measures proposed by the Registry and claimed that it was ready to conclude a protocol with the Court about monitoring mechanisms.

Chamber has Strict Obligation to Protect Witnesses

The Chamber reiterated that it had a strict obligation to protect the security of witnesses appearing before it. As a judicial body, therefore, it was required to weigh the competing rights and interests of the witnesses and the interests of the DRC arising out of the cooperation agreement between the DRC and the ICC.

The Chamber regretted that the DRC authorities interpreted its efforts to find an adequate and balanced solution as violating its mandate but appreciated the DRC’s efforts to find a solution to a “novel and unforeseeable situation involving seemingly conflicting legal requirements.”

The Congolese Minister of Justice and Human Rights, His Excellency Luzolo Bambi Lessa personally committed himself, on behalf of “the highest authorities of the Congolese state, that no harm will befall the three witnesses if they are returned to the DRC.” The Chamber noted that in spite of such diplomatic assurances, it still must conduct an independent risk-analysis. However, the Chamber considered the assurances of Minister Luzolo Bambi “must incontestably be treated with the greatest respect and must be presumed to have been made in good faith.”

The Chamber considered that the formal assurances given by the DRC authorities carry significant weight, as they commit the DRC not only to the Court but also to the Assembly of States Parties.

The Chamber also noted that the DRC has claimed that their ongoing stay in ICC custody is hindering legal proceedings against them in the DRC. The Chamber therefore invited the Congolese authorities to contact the ICC Registry to facilitate the witnesses’ participation in their trial in the DRC without violating their rights to due process. The Chamber said it would facilitate the witnesses’ communication with their Congolese lawyers, if necessary.

Protective Measures Ordered by the Chamber

Regardless of these assurances and the weight they carry, it is necessary to protect the witnesses against potential harm they may face because they have testified before the ICC, the Chamber stated. Therefore, it ordered the Registry to ensure the following protective measures were put in place until the end of the witnesses’ trials in the DRC:

• The witnesses shall be detained in a detention centre which, in terms of infrastructure and population, is most conducive to offering maximum protection. The VWU is instructed to consult with the DRC authorities to identify whether this is the CPRK Kinshasa, the Ndolo prison, or any other detention centre where the witnesses can be legally detained.
• If the witnesses are transported or transferred to another location, the VWU must be informed in advance.
• The detained witnesses shall be held under conditions which protect them from possible aggression by co-detainees. However, this should not lead to their permanent isolation.
• There shall be permanent surveillance of the security of the detained witnesses by guards who are specifically selected and trained for this purpose in close consultation between the Congolese prison authorities and the VWU. These guards must be reachable at all times by the VWU.
• A member of the VWU must be able to visit each detained witness twice per week and must be allowed to speak with them confidentially.
• When the detained witnesses are to be tried, an observer of the Court must be allowed to attend the proceedings. The Registry must thus be informed in advance of the date and location of any legal proceedings involving one of the detained witnesses.

Once the trial of one of the detained witnesses has ended, the VWU shall evaluate his security situation again and determine on (sic) the appropriate protective measures, if any.

If the DRC complies with this request for cooperation and these protective measures become operational, the Chamber held, it would have fulfilled its obligations to protect the witnesses against potential harm resulting from their testimony. Therefore, the Chamber held that in principle the witnesses could be returned to the DRC as soon as the VWU has confirmed that the measures are in place. However, the Chamber recalled its previous decision that the witnesses could only be returned if their claim for asylum in the Netherlands is rejected by the Dutch authorities.

The fate of the witnesses, therefore, lies in the hands of the Dutch immigration authorities. If the asylum application is rejected, the witnesses will be returned. If it is accepted, and they are granted asylum in the Netherlands, it is unclear what will happen to the witnesses. They could face trial in the Netherlands for the crimes they are accused of committing in the DRC.