Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative in consultation with Congolese activists.  The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.

On August 26, 2011, the International Criminal Court (ICC) Appeals Chamber ruled that three witnesses, who had been called to The Hague to testify for the defense in the Katanga case, could, in principle, be returned to the Democratic Republic of Congo (DRC). Prior to their transfer to The Hague, the three former militia leaders had been in detention in Makala prison in the DRC (for more information on these three, see “Appearance of Former Ituri Militia Fuels Speculation”). Floribert Ndjabu and Pierre Celestin Mbodina (Pitchou) were detained since 2006 after being implicated in the killing of UN peacekeepers and Sherif Manda more recently after being accused of leading the rebel Front Populaire pour la Justice au Congo. None had yet been brought to trial. After giving their testimony, the detained witnesses had asked for asylum in the Netherlands and for protective measures from the Court. They argued that their testimony relating to the involvement of the Congolese head of state in the massacre of Bogoro could open them up to new threats to their safety in Congo.

In the decision, the Appeals Chamber asserted that the protection measures for the witnesses that had been ordered (see discussion below) would be adequate to ensure their protection against any threats which might emanate from their testimony. The Chamber asserted, however, that it was not competent to rule on possible threats that the witnesses might face more broadly, and deferred to the authorities of the Netherlands to make a decision on their applications for asylum before they could be returned. Thus, the return of the witnesses remains suspended until a decision is made on the asylum claims by the Dutch authorities.

The decision has not received widespread attention in Bunia, but activists who are familiar with the case have expressed disappointment with the Court’s handling of this affair. Their disappointment revolves essentially around two issues. The first is a substantive disagreement with the Chamber with regard to the finding of fact on the additional threats that might face the witnesses: activists feel that the witnesses’ testimony does put them at higher risk and also point out that they have already been subjected to a violation of their rights as a result of their detention without trial in DRC for over five years. Second, they fault the Court’s failure to proactively engage with new material brought before it by the witnesses. Why could the Court not seize on the testimony and follow the evidence beyond the defendant in the dock up the chain of command? Others point out that trying the three in The Hague would address both the rights of the witnesses with regard to protection from harm and of the need for justice.

Security Risks

In deciding that no further protection measures were needed on the part of the Court, the Appeals Chamber pointed to assertions by the government of the DRC that the witnesses would not be harmed upon return and the protective measures that the ICC Victims and Witnesses Unit had been able to agree with the authorities. These latter included a secure detention site in Congo and assurances that the VWU would continue to have access to the witnesses in order to monitor their security.

Activists, however, think that the Chamber has underestimated the risks. They assert that the elements of the government of DRC are certain to be angered by the implication of their president in these attacks. In the words of one activist, the credibility of the Court could be eroded “by returning the detainees to prison with all the risks of summary executions that they could suffer.”

Another activist questioned the ICC’s reasoning: “On the basis of what indicators can the ICC be basing its evaluations of the risk, understanding well the constant insecurity in the DRC?” Activists point to the several high profile cases in which those critical of the government’s actions in Ituri have been attacked. In the words of one: “How and why are all the inconvenient witnesses … pursued or already dead … harassed, threatened or killed without in depth inquiry?” Two cases cited in support of this view are those of Beiza and Kisembo.

Beiza was a former UPC cadre who was integrated into the presidential security unit in Kinshasa, but who for the past several years found himself in exile in Kampala. On April 21, 2011, the Journal Le Millenaire carried an interview with Beiza in which he confirmed the testimony of Sherif Manda, saying, “I confirm that the order to attack the two localities came from President Kabila.” Less than a month later, Radio Okapi reported that Beiza had been arrested in Kampala, citing Ugandan military sources. According to Radio Okapi, these military sources had declined to provide a reason for Beiza’s arrest. At the same time, Beiza’s wife claims that she was not informed of his arrest, and sources cited by the lawyers for the witnesses allege that Beiza was beaten and is being held, injured in a prison near the border between Uganda and the DRC. (For more information see, “Three Defense Witnesses Blame the DRC for Bogoro Attack”).

Concerns around the Beiza case are only reinforced by the death of Floribert Kisembo in Ituri. Kisembo was the former chief of staff of the UPC and integrated into the Congolese army in 2005, becoming commander of the military region of Lubutu in Maniema. As reported by Radio Okapi, his position was attacked by regular Congolese forces in early May 2011, and he was wounded in the attack. The Congolese government justified the attack saying that he had deserted two weeks prior. However, rumors circulating in Ituri allege that Kisembo’s death was related to government fears that he knew too much and might have blown the whistle as others had also done. The rumors also indicate that this knowledge was linked with the cases ongoing before the Court in The Hague.

In addition to the concerns about how the Court is assessing the nature of the threat facing the witnesses upon return, there are also concerns about whether double standards are being applied and impacting the principle of equality of arms between the prosecution and defence. A commentator called Joska in the Journal Le Millenaire echoed this sentiment: “These defense witnesses should benefit from the same security accorded to prosecution. To act differently would be an injustice.” “The ICC has lost its credibility,” says one activist, “because for the prosecution they protect even witnesses who are less credible, but for the defense they want to deliver people to their deaths.” It should be noted, however, that unlike prosecution witnesses, these defense witnesses were transferred from detention pursuant to a special agreement with the DRC government, which the Chamber was compelled to consider.

Another critique of the Court’s approach appears rooted in a more general frustration that the Court has not been able to deliver more justice and that it has pursued too few perpetrators at too low a rank. In this context, some activists expressed hope that the testimony offered in Court, implicating high level officials might open the door to future prosecutions. There are no indications, however, that the prosecution is following up on this. Moreover, despite the fact that the witnesses have already spent years in detention without charge, the ICC wasn’t able to pursue their cases directly. In the words of one activist, it was a pity that the ICC couldn’t “find a mechanism to seize to…to be able to judge them in The Hague rather than returning them to prolonged detention which is nothing more or less than a sign of the incapacity of the Congolese government to judge them.”

Assuming, however, that the Court wanted to respond to these activist critiques, it would face a number of constraints. Following additional leads and following up new cases would require additional resources, and the Court is now juggling limited resources over six country situations in which charges have been brought. The Court is also constrained by its reliance on state cooperation for both witness protection and cooperation more generally. It is worth noting, as was so eloquently described by Dr. Sara Kendall in “Defense Witnesses Claim Asylum in the Netherlands: Implications for State Cooperation,” developments around these witnesses have already rendered the relationship with the DRC more fragile, with the DRC government “expressing its dissatisfaction,” with the delay in returning the witnesses. The host state, the Netherlands, is also facing a sticky situation adjudicating a highly publicized asylum case with less than the most sympathetic subjects (after all these are militia leaders, implicated themselves in the commission of crimes in the DRC). It is clear that the Court is seeking to cast a path through difficult waters, and it remains to be seen what the longer term implications will be.