Trial Chamber II at the ICC has requested information from the Democratic Republic of the Congo (DRC) and the Netherlands in order to determine whether it can continue to detain three witnesses from the trial of Germain Katanga and Mathieu Ngudjolo Chui.

The three witnesses were brought to The Hague in March 2011 to testify in the defense of Katanga and Ngudjolo. They had been imprisoned in the DRC for approximately five years pending charges related to the conflict in the DRC. Therefore, they were incarcerated at the ICC detention center during their time in The Hague.

During their testimony, which was given in April and May 2011, the witnesses implicated the president of the DRC, Joseph Kabila, in the crimes committed in the Ituri region of the DRC. 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. While the Dutch authorities have processed these asylum claims, the witnesses have remained in the ICC detention center, nearly two years after they arrived.

Their request has led to an increasingly complex legal battle. Recently, the witnesses requested Trial Chamber II to declare that their ICC detention is no longer justified and to order their immediate release. In the alternative, the witnesses asked the court to hold a status conference to discuss their situation. The witnesses claim that any court of justice should have the power to order the release of persons in its custody when their detention violations international human rights standards. They claim that their detention at the ICC has been without a legal basis since August 2011, when the court determined it was safe for them to return to the DRC. They consider that their detention has become unreasonably long, mainly due to the slowness of the Dutch asylum proceedings. They also claim that the DRC has no valid legal basis for their detention by the DRC.

In the meantime, Mathieu Ngudjolo Chui, who was charged with war crimes and crimes against humanity committed during an attack on Bogoro, a village in eastern DRC, has been acquitted of all charges and released. He was subsequently taken into detention by the Dutch authorities for not having a residence card and has filed his own claim for asylum in the Netherlands. Germain Katanga, who faces similar charges, is still on trial, awaiting a decision about potential changes in the charges against him.

No Consensus Over Detention

Given their fear for their safety, the ICC Trial Chamber II had to determine whether its witness protection obligations would allow it to return the witnesses to the DRC. The Chamber found that the witnesses could be returned to the DRC once it was satisfied that sufficient protective measures would be in place upon their return.

The ICC and the DRC worked together to devise and put into place a number of security measures for the witnesses if they were returned. In August 2011, the Court determined that the DRC had made sufficient witness protection guarantees and, therefore, ordered the witnesses to be sent back to the DRC. However, the ICC considered that their return was not possible due to the ongoing Dutch asylum procedure.

The court called for consultations between the court, the Netherlands, and the DRC to determine whether the witnesses should remain in custody, and if so, whose. The Dutch have maintained that the witnesses should remain in the custody of the ICC during their asylum procedures. The DRC has demanded that the witnesses be returned to the DRC, claiming they should have been returned immediately after they had finished their testimony.

The ICC is not in a position to detain the witnesses indefinitely, the chamber has found. However, given what it considers an extraordinary situation, the ICC is in a bind. It is unable to release the witnesses to either the Netherlands or the DRC until their asylum claims are final. Some have estimated that this could take years. The court has continued to seek cooperation from the Dutch authorities about the detention of the witnesses, to no avail.

Before the Dutch courts, their cases have continued. In September 2012, a District Court in The Hague held that the Netherlands had an obligation to consult with the ICC to put and end to the witness’ detention. This was overturned by the Court of Appeals in The Hague in December 2012. This decision is being appealed before the highest court of the Netherlands, the Hoge Raad. The asylum applications have been rejected by the Dutch Immigration and Naturalization Service, but these decisions are also being appealed.

Request for Information

After receiving the witness’ motion requesting their release, the trial chamber has requested additional information from the Netherlands and the DRC about the witness’ detention. The court considered that the custody of the witnesses, based on Article 93(7) of the Rome Statute, is linked to their detention by both the DRC and the pending asylum claims.

The chamber noted that it has no authority to review the DRC’s detention of the witnesses but also that it has not had any updates on the status of their detention there since the witnesses arrived in The Hague. Therefore, the court considered, that the witnesses would need to remain in the detention center as long as they were in the custody of the court.

The trial chamber reiterated its previous finding that the asylum process must not cause an unreasonable extension of their detention at the ICC detention center. It asked the Netherlands about the maximum time asylum proceedings could be expected to last—until all possible appeals and procedural avenues have been exhausted.

Regarding the DRC’s detention claims, the court asked the DRC about the exact situation of the witnesses with regard to their provisional detention. The trial chamber also inquired about whether the DRC authorities considered that, given how long they have been detained, the witness’ continued detention was still warranted. Finally, the court asked about the prospects for finalizing the DRC proceedings against the witnesses during their incarceration in the ICC detention center. The court noted that it had not received any response to proposals to provide the necessary technical and logistical support to facilitate the witnesses’ participation in these proceedings from a distance.

The court requested answers to these questions by March 1, 2013.