Dutch lawyers representing three individuals who appeared as witnesses before the International Criminal Court (ICC) have filed an amicus brief before the ICC. The lawyers informed Trial Chamber II about the witness’ ongoing asylum proceedings and proceedings about their detention, currently pending before the Dutch Supreme Court.

The three witnesses were brought to The Hague in March 2011 to testify in the defense of Germain Katanga and Mathieu Ngudjolo Chui, who were charged by the ICC with war crimes and crimes against humanity committed during an attack on Bogoro, a village in eastern Democratic Republic of Congo (DRC). 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.

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.

While the Dutch authorities have processed these asylum claims, the witnesses have remained in the ICC Detention Center for nearly two years. Their asylum lawyers claim this detention is unfair and have requested the ICC trial chamber to put an end to it.

Meanwhile, Mathieu Ngudjolo 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 is still on trial, awaiting a decision about potential changes in the charges against him.

Delays in Asylum Claims

The witnesses filed asylum requests on May 12, 2011. The Dutch Immigration Service initially refused to process the requests according to normal Dutch asylum law. However, in December 2011, a Dutch court overturned this decision and the immigration procedure began in January 2012. According to their lawyers, the Immigration Service rejected the asylum claims in October 2012, referencing Article 1(F) of the 1951 Refugee Convention,[i] and finding that returning the witnesses to the DRC would not violate Article 3 of the European Convention on Human Rights (ECHR). [ii] According to the asylum lawyers, the October 2012 decision was rendered over four months after the legal time limits for the Netherlands to process asylum claims.

The witnesses have appealed these decisions. An appeal hearing will be held on April 11, 2013 before the District Court of The Hague, sitting in Amsterdam. Normally, the lawyers explained, an appeal decision is given within six weeks of the hearing. However, in complex cases, they said, a delay is likely in these cases because they are complex and the three cases are being heard at the same time.

According to the witness’ lawyers, the Netherlands has failed to properly investigate their claims. The Netherlands improperly investigated the witness’ potential involvement in serious crimes, the lawyers claim. This faulty investigation led to the improper conclusion that the witnesses should be denied asylum according to Article 1(F) of the 1951 Refugee Convention, their lawyers asserted. The lawyers claimed the Netherlands also conducted an improper investigation into whether the witnesses could be safely returned to the DRC without being subject to torture or inhuman or degrading treatment or punishment, a right protected by the ECHR.

These investigative failures form the basis of the witness’ appeal before the Dutch District Court. In particular, the lawyers claim the Netherlands has violated the witness’ rights under Article 3 of the ECHR. Given the current situation in the DRC and the situation of the witnesses, the lawyers told the ICC Trial Chamber that they expect the Dutch courts to consider the investigations faulty. In this case, the Immigration Services would have to conduct new investigations, causing further delay in the proceedings.

There are other reasons for potential delays, the lawyers submitted. There is a significant overlap between these cases and the asylum claim made by Mathieu Ngudjolo when he was released from the ICC Detention Center, they said. Therefore, they lawyers have requested the District Court to await the outcome of Ngudjolo’s asylum procedure because it might require a reassessment of the facts of the witness’ cases.  This could lead to delays, as could additional appeals in the witness’ cases. If the witness’ win their appeals, a new decision must be made by the Immigration Services, which could also lead to up to six months of delay. This new decision would also be subject to review, a cycle which the lawyers claimed could be repeated several times. If the witness’ lose their claim, the lawyers have indicated they will bring a petition before the European Court of Human Rights, a process that could cause as much as a year of further delay.

Challenges to Detention

The witnesses have also contested their continued detention at the ICC Detention Center. Their lawyers argue that this prolonged detention, without any proper charges against them and without a valid reason, violates Article 5 (the right to liberty and security of person) and Article 13 (right to effective remedy before a national authority) of the ECHR.

In September 2012, the Single Judge of The Hague District Court ordered the Netherlands to take custody of the witnesses. This decision was appealed and overturned by The Hague Court of Appeal in December 2012. The lawyers appealed this decision before the Dutch Supreme Court, arguing that the Court of Appeal had made several errors in legal reasoning and a misunderstanding of the decisions of Trial Chamber II of the ICC. The lawyers estimated that a decision in the Supreme Court case could take until March 2014, possibly longer.

The delays in these cases are not the witness’ fault, the lawyers submitted. Therefore, the lawyers argued, the witnesses should not have to suffer the consequences of the delays by continuing their detention at the ICC.  They have already been detained there for nearly two years. If the Trial Chamber does not intervene, the lawyers argued, the witnesses could face an additional year or more in the ICC’s detention facility. The unfairness of this detention, they argue, is compounded by the fact that they have not received a valid court order from the DRC that would justify their detention in these circumstances. Based on these factors, the lawyers requested the Trial Chamber to end the detention of the witnesses.