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Published online by Cambridge University Press: 05 February 2013
In 2011 three Congolese ICC defence witnesses applied for asylum in the Netherlands. A decision has not yet been made. This article argues that three outcomes of their procedures are most likely: (i) an asylum permit is granted, (ii) a permit is denied, or (iii) the applicants are excluded from refugee protection on the basis of Article 1(f)(a). All scenarios would have serious practical and political consequences for the ICC, the Netherlands, and the DRC. There is a limited, but real, chance that future defence witnesses will also apply for asylum. This mere threat might already seriously hamper future co-operation between the ICC and states parties. More practical and political dilemmas stemming from a lack of harmonization between international criminal law and principles of international protection lie ahead, since a coherent scheme on how to deal with ICC defendants whose case has been rejected in the pre-trial phase, who have been acquitted, or who have served their sentence and cannot be refouled to their country of origin has thus far not been realized. As it stands the international community does not have an answer to this fundamental system error yet.
1 With regard to the situation of the asylum-seeking Congolese witnesses a recent and detailed legal analysis can be found in Sluiter, G., ‘Shared Responsibility in International Criminal Justice: The ICC and Asylum’, (2012) 10 JCIJ 661Google Scholar. Sound summaries of the trial sessions and analyses on the issue are furthermore available at www.katangatrial.org.
2 For a detailed procedural history see Decision on an Amicus Curiae application and on the ‘Requête tendant á obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins d'asile’ (Arts. 68 and 93(7) of the Statute), Prosecutor v. Katanga and Ngudjolo Chui, ICC-01/04-01/07, T.Ch. II, 9 June 2011, paras. 1–16.
3 ‘Getuigen ICC uit asielprocedure geweerd’, De Telegraaf, 5 October 2011.
4 Ibid.
5 Aanhangsel Handelingen II, 2011/12, nr. 674.
6 For more on this procedure, see Sluiter, supra note 1, at 12.
7 District Court The Hague, seat Amsterdam, Decision of 28 December 2011, LJN: BU9492.
8 Art. 1(a)(2) Convention to the Status of Refugees, 1951, 189 UNTS 137, 28 July 1951 (in force 22 April 1954).
9 Besides Art. 29(a), Art. 29(b) basically offers subsidiary protection, (c) a status on the basis of trauma, (d) a status on the basis of the categorical protection policy, (e) a status for family members who travel later in a narrower sense, and (f) a status for family members who travel later in a wider sense.
10 This stipulation is derived from Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
11 Prosecutor v. Katanga and Ngudjolo Chui, Registry's transmission of observations received from the DRC authorities in execution in relation to document ICC-01/04-01/07-3123, Annex 1, T.Ch. II, 22 August 2011.
12 S. Kendall, ‘Defense Witnesses Claim Asylum in the Netherlands: Implications for State Cooperation’ (29 August 2011) available at www.katangatrial.org/2011/08/defense-witnesses-claim-asylum-in-the-netherlands-implications-for-state-cooperation.
13 Such a claim could possibly be supported by a request for a so-called Rule 39 Interim Measure at the European Court of Human Rights (ECtHR). By means of ‘diplomatic assurances’ the Dutch and DRC authorities may try to convince the ECtHR that the witnesses will not be mistreated upon return. The Registry already presented a similar plan in early August 2011, when it indicated that a transfer to Ndolo military prison would be the best option for the witnesses, and that the DRC authorities had agreed to place a security guard at the entrance of the wing where the detainees would be kept and to co-operate with the ICC and MONUSCO with regard to other prisoners kept in the same area as the three detained witnesses, supra note 12. It is not likely to lead to deportation, since the ECtHR recently ruled that diplomatic assurances are no guarantee for fair trial standards (Othman (Abu Qatada) v. the UK, ECtHR, 17 January 2012, 8139/09).
14 The Schengen agreement created an area of 26 countries within Europe without internal border controls.
15 In the context of this paper activities described under subpara. (b) (serious non political crimes) and subpara (c) (crimes against peace) are not taken into account.
16 UNHCR Guidelines on International Protection No. 5; Application of the Exclusion Clauses: Article 1(f) of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, UNHCR, 4 September 2003, Geneva, at 2.
17 Rikhof, J., The Criminal Refuge: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law (2012)Google Scholar.
18 Bliss, M., ‘“Serious Reasons for Considering”: Minimum Standards of Procedural Fairness in the Application of Article 1F Exclusion Clauses’, (2000) 12 IJRL (Special Supplementary Issue) 92CrossRefGoogle Scholar, at 115–16.
19 van Wijk, J., ‘Als vluchtelingen (mogelijk) daders zijn; 1F uitsluiting van de asielprocedure en vervolging van internationale misdrijven’, (2011) 4 Tijdschrift voor Criminologie 310Google Scholar.
20 Council of State, 16 January 2004, LJN: AO2496.
21 Rikhof, J., ‘War Criminals Not Welcome: How Common Law Countries Approach the Phenomenon of International Crimes in the Immigration and Refugee Context’, (2009) 21 IJRL 453CrossRefGoogle Scholar, at 463–4.
22 Letter of UNHCR to the Dutch Ministry of Foreign Affairs on Khad/WAD Afghanistan, 9 July 2009. See www.rijksoverheid.nl/documenten-en-publicaties/kamerstukken/2010/02/10/bijlage-2-kamerbrief-inzake-uitkomst-overleg-met-unhcr-inzake-de-note-on-the-structure-and-operation-of-the-khad-wad-in-afghanistan-1978-1992.html.
23 See Van Wijk, supra note 19.
24 REDRESS and FIDH, ‘Strategies for the Effective Investigation and Prosecution of Serious International Crimes: The Practice of Specialised War Crimes Units’, December 2010.
25 For these figures, see Van Wijk, supra note 19. Other European countries do not publish any publicly available data on the number of exclusions.
26 Human Rights Watch (HRW), ‘Seeking Justice: The Prosecution of Sexual Violence in the Congo War’, 17(1A) (March 2005) 1, at 19.
27 ‘DR Congo: Army Abducts Civilians for Forced Labor’, HRW News, 16 October 2006, available at www.hrw.org/news/2006/10/15/dr-congo-army-abducts-civilians-forced-labor.
28 ‘2 Nepalese Blue Helmets Released in DR Congo, 5 Still Held Captive – UN’, UN News Centre, 27 June 2006, available at www.un.org/apps/news/story.asp?NewsID=19013&Cr=democratic&Cr1=congo.
29 See HRW, supra note 26, at 19.
30 ‘Witnesses Complain about Their Detention in Kinshasa’, Arusha Times, Issue 00663, 6 April–30 May 2011.
31 UN Security Council, ‘Report of the Secretary-General on Children and Armed Conflict in the Democratic Republic of the Congo’, S/2008/693, 10 November 2008, 1, at 3.
32 ‘The rationale behind the exclusion clauses is twofold. Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice.’ Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, UNHCR, 4 September 2003, Geneva, 1, at 3.
33 See Van Wijk, supra note 19.
34 Even without such lobby, the Dutch integrated ‘no safe haven’ policy already ensures that the Public Prosecutor's Office receives the IND files of excluded persons in order to assess if criminal prosecution is viable. See Van Wijk, supra note 19.
35 For ICTR, see Justice Hassan B. Jallow, ‘The OTP-ICTR: ongoing challenges of completion’, Guest Lecture Series of the Office of the Prosecutor, The Hague, 1 November 2004, 1, at 6; for SCSL, see J. Bennett, ‘Not above the Law’, Newsweek, 11 June 2007.
36 For a detailed analysis of the situation of these acquitted ICTR defendants, see Heller, K. J., ‘What Happens to the Acquitted?’, (2008) 21 LJIL 663CrossRefGoogle Scholar.
37 Personal email communication with author, 26 August 2011.
38 The Council reiterated its call to member states ‘to co-operate with and render all necessary assistance to the International Tribunal in the relocation of acquitted persons’. See Security Council, S(RES) 2054, 29 June 2012.
39 See supra note 2, para. 85: ‘Since their testimony is now complete and since the three asylum applicants are in detention, it is imperative that the Dutch authorities examine the applications as soon as possible, since the processing of their applications must in no way cause any unreasonable delay to their detention under Art. 93(7) of the Statute. For this last reason, the Chamber must emphasize that the Court cannot contemplate holding these witnesses in custody indefinitely.’
40 District Court, The Hague, 26 September 2012, LJN: BX8320.
41 For more recent information on the case: updates on the case are normally provided on the website www.katangatrial.org. Another option is to look for press releases on the website of the applicants’ counsel: www.bohler.eu.
42 ‘Summary Conclusions of the “Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law” Which Took Place in Tanzania 11–13 April 2011’, UNHCR and ICTR, Arusha, July 2011, at 1.
43 For the procedural history of the witness in Lubanga, see Prosecutor v. Thomas Lubanga Dyilo, Redacted Decision on the request by DRC-D01-WWWW-0019 for special protective measures relating to his asylum application, ICC-01/04-01/06,T.Ch.I, 5 August 2011, paras. 1–14.
44 See Sluiter, supra note 1, at 16.
45 Kamerstukken II 2001/02, 28098 (R1704), nr. 13.
46 See Sluiter, supra note 1, at 6.
47 See, e.g., Prosecutor v. Zejnil Delalić et al., Decision on Confidential Motion for Protective Measures for Defence Witnesses, Case No. IT-96-21-T, T.Ch., 25 September 1997.
48 Art. 43(6) Rome Statute.
49 Prosecutor v. Nteziryayo, Decision on the Defence Motion for Protective Measures for Witnesses, ICTR-97-29-T, T.Ch. II, 18 September 2001, para. 6.
50 Arbia, S., ‘The International Criminal Court: Witness and Victim Protection and Support, Legal Aid and Family Visits’, (2010) 36 Commonwealth Law Bulletin 519, at 522CrossRefGoogle Scholar; Information ICC website ‘Victims and Witnesses Unit’ of the ICC, available at www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Protection/Victims+and+Witness+Unit.htm.
51 See Sluiter, supra note 1, at 16 ‘If the submission of asylum applications by ICC-witnesses would be considered such a significant problem on the part of the Dutch authorities, the question arises why the Netherlands has always been so keen to host these international criminal tribunals. It should have anticipated that asylum applications are an inevitable consequence of serving as the host state to these institutions. If a state is unprepared to accept these consequences, it may be time seriously to consider other states to serve as the host for international criminal tribunals.’
52 Bourgmestres Ignace Bagilishema and Jean Mpambara went to France, former minister of education André Rwamakuba to Switzerland and former préfect Emmanuel Bagambiki to Belgium. All were reunited with their respective families. Father Hormisdas Nsengimana, a Catholic priest, was allowed to enter Italy, where according to an ICTR spokesman he is to participate in ‘pastoral activities along with other priests in a northern Italy parish’. For details see R. K. G. Amoussouga, ‘The ICTR's Challenges in the Relocation of Acquitted Persons, Released Prisoners and Protected Witnesses’, presentation delivered at the forum between offices of the prosecutors of UN, ad hoc criminal tribunals and national prosecuting authorities, 26–8 November 2008, Arusha; ‘Italy Takes in Nsengimana after His Acquittal’, Hirondelle News Agency, 23 March 2010.
53 Protais Zigiranyirazo (brother-in-law of former Rwandan president Juvénal Habyarimana), the former Rwandan military officer General Gratien Kabiligi and the former ministers Casimir Bizimungu (health), Jérôme Bicamumpaka (foreign affairs). See ‘ICTR Seeks Host Countries for Ex-Prisoners’, Hirondelle News Agency, 14 January 2012.
54 A. Osborn, ‘Fossey Murder Suspect Arrested’, The Guardian, 28 July 2001.
55 Protais Zigiranyirazo v. Prosecutor, Appeal Judgement, ICTR-01-73-A, A.Ch., 16 November 2009.
56 C. Muhenga, “‘Mr. Z” Demands $1 Million Compensation from ICTR’, International Justice Tribune (RNW), 28 March 2012.
57 ‘Summary Conclusions of the “Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law” which took place in Tanzania 11–13 April 2011’, UNHCR & ICTR, Arusha, July 2011, 1, at 7.
58 Ibid, at 8.
59 ‘Weekly Summary: ICTR Dismisses Acquitted Persons Request’, Hirondelle News Agency, 20 July 2012.
60 See Heller, supra note 36, at 676.
61 Supra note 57, at 8: ‘The problem of such relocation of persons is not easy to resolve and this problem is expected to persist beyond the existence of the ICTR and to arise in the future for other international criminal institutions and, in particular, the ICC.’
62 Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-T.Ch. I, 8 February 2010.
63 ‘Former Darfur Rebels Criticize the ICC, as Bashir Appoints Its Members in Sudan's Cabinet’, Sudan Tribune, 19 December 2011.
64 Prosecutor v. William Smoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Confirmation of Charges, Pre-T.Ch. II (ICC-01/09-02/11); and Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges, Pre-T.Ch. II (ICC-01/09-02/11, 23 January 2012.
65 ‘Kibaki Moves Ali, Names New Kenya Police Boss’, Daily Nation, 8 September 2009.
66 The proceedings at the ICTR related to genocide in Rwanda, while the ICC accusation related to crimes against humanity committed in the DRC. See Prosecutor v. Callixte Mbarushimana, Decision on the Confirmation of Charges, ICC-01/04-01/10, Pre-T.Ch. I, 16 December 2011. The chamber established that ‘Mbarushimana was granted refugee status in France in 2003 and holds a residence permit issued by the Police Department of Paris, valid from 31 December 2003 until 31 December 2013.’ Also see ‘Callixte Mbarushimana Is Released from the ICC Custody’, press briefing ICC, ICC-CPI-20111223-PR760, 23 December 2011.
67 The Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence Pursuant to Article 76, ICC-01/04-01/06-2901, T.Ch. I, 10 July 2007.
68 ‘Mali Becomes First African State to Sign an Agreement on the Enforcement of Sentences with the ICC’, press briefing ICC, ICC-CPI-20120120-PR764.
69 Should the sentence after a possible appeal remain 14 years, the time Lubanga has served in pre-trial detention since March 2006 will be deducted from the sentence. Depending on the sentencing regime in the host country he will either have to serve the full remaining eight years or part of it.
70 Art. 1(f) itself is silent on the consequences of having served a penal sentence. For this reason the authoritative Background Note is consulted to provide guidance. See supra note 32.
71 Para. 73 to a certain extent already suggests this by concluding that defining acts as truly heinous crimes is ‘more likely to be the case’ for crimes under Art. 1(f)(a) (crimes against humanity, war crimes, and genocide) than those falling under 1(f)(b) (serious non-political crimes).
72 All countries which signed agreements on the enforcement of ICC sentences are members of the 1951 Refugee Convention.
73 Whether Bagaragaza has applied for asylum or has made another request is unknown. ‘ICTR/Bagaragaza: Freed Rwandan Convict Sill Seeking Legal Status in Sweden’, Hirondelle News Agency, 11 January 2012.
74 Ibid.
75 Ibid.
76 ‘ICTR: Early Release for Muvunyi’, International Justice Desk (RNW), 6 March 2012.
77 ‘Uwinkindi Is One of Seven Churchmen Indicted by ICTR’, Hirondelle News Agency, 19 April 2012.
78 Former city councilman Vincent Rutaganira was released in March 2008. He allegedly left the UN's Special Detention Facility in Arusha aboard a UN vehicle with his luggage for an unknown destination. See S. Chhatbar, ‘Ex-Rwandan Councillor Set Free’, Arusha Times, Issue 00508, 8–14 March 2008; former youth organizer Joseph Nzabirinda was released from the UN detention centre in Arusha in December 2008. As he left prison, he told journalists that he would consult his lawyer to see how he could rejoin his family in Belgium. Whether he indeed successfully managed to get to Belgium is unknown. See S. Chhatbar, ‘Rwandan Released after Serving 7-Year Sentence’, Seattle Times, 19 December 2008; Italian-Belgian journalist Georges Ruggiu was transferred to an Italian prison in February 2008 and in 2009 released in breach of the ICTR Statute. His whereabouts are unknown. See ‘Genocide-Convict Journalist Ruggio Set Free in Violation of ICTR Statute, Hirondelle News Agency, 28 May 2009; Former Lieutenant Samuel Imanishimwe was on 8 August 2011 released upon completion of his sentence in Mali. He reportedly did not want to return to his native Rwanda, but his current whereabouts are, as far as I could establish, unknown. See ‘More ICTR Convicts Transferred to Mali and Benin to Serve Their Sentences’, ICTR press briefing, ICTR/info-9-2-726.EN, 3 July 2012; ex-mayor Juvénal Rugambarara was on 8 February 2012 released upon serving three-quarters of his sentence in Benin. Also his whereabouts are unknown.
79 District Court Rotterdam, 7 April 2004, LJN: AO7178. English version available at www.asser.nl/upload/documents/20120413T095005-Nzapali%20Judgment%20District%20Court%20Rotterdam%20(English).pdf.
80 As a consequence of the conviction the Roi des Bêtes (who entered the Netherlands as an asylum seeker) had been excluded. As a matter of principle the Netherlands issues a declaration of undesirability to all excluded individuals. Persons who are declared undesirable commit a criminal offence if they continue to stay on Dutch territory. The confirmation of the status of declaration of undesirability: Council of State, nr. 200602401/1/v4, 7 August 2006.
81 Court of Appeal Den Bosch, 21 September 2007, LJN: BW4831.
82 Supreme Court, 1 December 2009, LJN: BI5627.
83 Ibid., r.o. 9.
84 In 2008 N. started a case against the Netherlands at the ECtHR concerning Arts. 3, 8, and 13 of the ECHR. This case is still pending; the court has requested that the Netherlands government provide more information on the matter, available at www.asser.nl/default.aspx?site_id=36&level1=15248&level2=&level3=&textid=39989.
85 In the Netherlands, for example, this could already happen rather soon. In 2007 two Afghans were on the basis of universal jurisdiction convicted to 12 years’ imprisonment. Like the Congolese they are excluded from refugee protection and declared undesirable aliens. See The Hague, Court of Appeal, 29 January 2007, LJN: AZ7143. For an English translation see http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=kenmerken&vrije_tekst=LJN+AZ7143.
86 See, for example, the ‘Agreement between the Kingdom of Denmark and the International Criminal Court on the Enforcement of Sentences of the International Criminal Court’, ICC-PRES/12-02-12, date of entry into force 5 July 2012. Art. 16 on the transfer of the sentenced person upon completion of the sentence states, ‘Following completion of the sentence, the sentenced person who is not a national of Denmark may, in accordance with the law of Denmark, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless Denmark authorizes the person to remain in its territory . . . Denmark may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.’ No reference is made to the responsibilities of Denmark or the ICC in case none of these options is available. Agreements with other countries use similar wordings. See www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal.
87 E. Eckholm, ‘Out of Guantánamo, Uighurs Bask in Bermuda’, New York Times, 14 June 2009.
