Testifying behind Bars: Detained ICC Witnesses and Human Rights Protection

By Joris van Wijk and Marjolein Cupido

An extended version of this commentary is available here. It will also be published in C. Stahn, ‘The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements’, Oxford University Press.

On 27 March 2011, three witnesses arrived in The Hague to testify before the International Criminal Court (ICC) in the case against Katanga and Chui. The witnesses, all former militia leaders, had been detained in the Democratic Republic of Congo (DRC) for their alleged involvement in the murder of nine UN peacekeepers and the preparation of a military coup. Before the ICC, the witnesses provided detailed testimonies about the involvement of the current political leadership of the DRC in the Ituri massacres. Due to the incriminating nature of their statements, the witnesses feared that they would be subjected to persecution, human rights violations and possibly execution upon their return to the DRC. In light of these fears, the witnesses’ duty counsel proposed an innovative protective measure: allowing the witnesses to apply for asylum in the Netherlands. For this purpose, the ICC would have to suspend the witnesses’ return to the DRC and hand them over to Dutch authorities.

The Dutch authorities have not been pleased with the asylum applications. They have processed the requests with great restraint and unwillingness. It was not until recently that they excluded the witnesses from asylum protection on the basis of Article 1(f) of the Refugee Convention, finding that there are sufficient reasons for considering that the witnesses knowingly and personally participated in crimes against humanity in the DRC. At the same time, the Amsterdam District Court decided that the Dutch authorities cannot deport the witnesses to their country of origin. Such deportation would violate article 6 of the European Convention of Human Rights (ECHR), because there is a risk that the witnesses will not receive a fair trial in the DRC.

During the course of the asylum proceedings the witnesses have been kept in detention by the ICC. Although the ICC acknowledged that the legal basis of this detention is problematic, it found itself incompetent to release the witnesses. Therefore, the Court tried to pass the responsibility for the witnesses’ detention on to the Dutch authorities. So far without success. The Netherlands has refused to take custody over the witnesses and found that the witnesses should direct any objections concerning their detention to the Congolese authorities.

After more than two and a half years of proceedings the involved parties have yet to come up with an adequate solution. By deciding that the witnesses may neither legally reside in the Netherlands, nor be deported to the DRC, the Dutch authorities have effectively put the witnesses in a ‘legal limbo’. The witnesses retain the possibility to contest this limbo position before the European Court of Human Rights (ECtHR). However, one may wonder to what extent this solves their problem in the foreseeable future. European proceedings typically take many years during which the witnesses will possibly remain in ICC detention. This way, European proceedings will only prolong the witnesses’ uncertain position.

The difficulties faced by the relevant parties to put an end to the witnesses’ precarious situation seems to result from a lack of harmonization between international criminal law, human rights law and refugee law. Establishing the meaning and purpose of each and every legal regime in itself is not necessarily difficult. This case, however, shows that applying these at the same time certainly can be problematic, in particular when the various actors involved have diametrically opposing interests. These fields of law present the ICC and the Netherlands with contradictory obligations vis-à-vis detained witnesses. On the one hand, such witnesses need to be unduly returned to their country of origin ‘[w]hen the purposes of the transfer have been fulfilled’ – i.e. after they have given testimony. On the other hand, obligations to respect internationally recognized human rights – including the right to apply for asylum – can prevent the ICC and the Netherlands from enabling and facilitating the witnesses’ return. These contradictory obligations can perhaps be reconciled once the Dutch authorities receive sufficient guarantees from the DRC that the witnesses will have a fair trial so that Article 6 ECHR no longer bars their deportation. However, even if this is the case it remains doubtful whether the ICC can detain the witnesses until that time. Moreover, it is unclear what will happen to the witnesses once they are released. Will they go underground as illegal immigrants, be received in a safe house in the Netherlands, or be relocated to another country?

The witnesses’ asylum applications clearly created a catch 22. It is unlikely that the ICC, the Netherlands and DRC will, in the near future, come to a solution that is acceptable to all. Because of the fundamental nature of the problems identified, it makes one wonder what the future implications of this case are, and if there are any viable strategies available which would enable detainees to testify before the ICC in the future without obstructing the relationship between the Court and its States Parties. We do not foresee that the ICC will be overwhelmed by detained witnesses applying for asylum in the Netherlands. And even if new detained witnesses from the DRC or other countries do so, only under very particular circumstances will they have a viable claim to a refugee status. Still, this does not detract from the problem. After all, the perceived threat for such applications alone can already seriously hamper the future cooperation of State Parties with the ICC. For example, why would the Congolese government assist the defence of their adversary Bosco Ntaganda in case it requests a detainee to testify in The Hague? Why would it accept the risk that such a person may apply for asylum in the Netherlands?

It is difficult to conceive a solution that would, on the one hand, advance the cooperation of states with the ICC, while on the other hand, it would give detained witnesses access to the highest standards of human rights protection. The most obvious solutions – e.g. the use of video-link testimony and the introduction of rogatory commissions – may be suitable from the perspective of states detaining possible witnesses. At the same time, these solutions would – by definition – prevent detained witnesses from gaining access to Dutch, and therefore European, standards of human rights protection. This limitation may prompt these witnesses to not testify at all. We admit that such limitations may be a necessary evil. Requiring the ICC to conduct perfect proceedings, may be too much to ask. And yet, it begs the question to what extent the ICC as an institute intending to do justice according to the highest legal standards would in that case lose prestige. Because intuitively, it is somewhat awkward if the International Criminal Court would accept that material witnesses cannot testify in person for the mere reason that it may bring them in a position to request for protection against persecution, acts of torture, illegal detention or the death penalty.