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Judges Decide that Detained Witnesses Could be securely returned to DRC

Several important legal developments have arisen since the trial went on hiatus for the summer break. In particular, the judges rendered an important decision in the ongoing legal battle over the asylum applications of three defense witnesses, and requested submissions about a judicial visit to Bogoro after the defense cases have concluded. These are described below.

Security for Witnesses who Claimed Asylum

Several decisions have been rendered with regards to the security situation and ongoing legal dispute concerning three Katanga defense witnesses who were detained in the DRC prior to traveling to the Netherlands to give evidence. While in the Netherlands, the three witnesses requested asylum, claiming their lives were at risk should they be returned to the DRC.

Appeal of June 9 Decision

The Trial Chamber held that requests made by the prosecution, the government of the DRC, and the Dutch authorities to appeal the June 9, 2011 decision on asylum (discussed here ) were inadmissible. However, the Trial Chamber found that the appeals could be raised directly with the Appeals Chamber without the need for the Trial Chamber’s authorization. The Appeals Chamber, noting that as of August 26, 2011, no appeal had been brought before the Chamber, rejected the Netherlands’ request for directions on the proper procedure to follow during the appeals process.

Security Conditions for Returning the Witnesses Fulfilled

The Trial Chamber also issued a decision ordering the Registry to consult with the authorities of the Netherlands and the DRC in order to determine whether the witnesses should remain detained pending the final outcome of their request for asylum, and if so, who should be responsible for their detention. The Registry must submit a report to the Trial Chamber no later than September 16, 2011.

Recalling its June 9, 2011 decision the Chamber noted the different scenarios it had considered in case the security conditions were suitable to enable the detainees to be returned to the DRC. The Chamber also recalled its decision of June 22, 2011,  in which it took notice of formal guarantees of safety made by the Congolese authorities and ordered the Registry to put into place specific security measures (discussed here ). The Registry responded with a report in early August that indicated that 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 cooperate with the ICC and MONUSCO with regards to other prisoners kept in the same area as the three detained witnesses.

On August 10, 2011, the Trial Chamber ordered the Registry to contact the DRC authorities in order to obtain confirmation from the DRC authorities that:

  1. The charges against the three detained witnesses fall under military jurisdiction;
  2. The Victims and Witnesses Unit (VWU) will be able to be in contact with the specially designated guards at all times and that the VWU will be allowed to meet privately with the detained witnesses at least twice per week;
  3. That the DRC authorities have agreed to inform the VWU whenever the detained witnesses are to be transported; and
  4. The Court will be informed before any legal proceedings against the witnesses begin and will be allowed to send observers to the hearings.

In response, the Registrar submitted on August 23, 2011, that the DRC authorities had given confirmation of the above points, including that they would fully comply with the protective measures indicated by the court. The Registrar also noted that the DRC authorities had expressed displeasure with the delayed return of the witnesses.

In this latest decision, from August 26, 2011, the Trial Chamber found that the conditions for returning the three detained witnesses have been fulfilled. The Chamber considered that the court had fulfilled its obligations under Article 68 of the Rome Statute. There are no other grounds that should delay the return of the witnesses to the DRC, the Chamber stated. The Chamber took no position on the alleged risks claimed by the witnesses: that their human rights would be violated and they would be persecuted by the DRC authorities if they are returned to the DRC.

In spite of these findings, the Trial Chamber held that:

However, for the reasons explained in its decision of 9 July 2011, so long as the request for asylum is still pending before the Dutch authorities, the Court cannot request that the Host State facilitate their return to the DRC. The fact that the asylum request is still pending makes their return temporarily impossible from a legal point of view.

According to the Chamber, it must still be decided whether the witnesses should be remain in detention while the Dutch authorities adjudicate their asylum claim, and if so, who should be responsible for detaining them. The Chamber considered this an urgent issue, and ordered the Registry to take up consultations with the two involved states to find a solution, since, as the Court stated “the obligation of the Court to detain the three witnesses has now, in principle, come to an end.”

Judicial Site Visit to Bogoro

On August 26, 2011, the Trial Chamber invited the parties to make observations on a potential site visit to Bogoro.

This issue had been raised before, in November 2008. Then, the parties had all submitted that a site visit would be useful to gain a better understanding of the events relevant to the case. At that time, the defense for Katanga had suggested that a site visit towards the end of the trial might be more appropriate, so that the Judges could identify issues that could be clarified during the site visit. Indeed, as the trial progressed, the need for a site visit became essential, according to the Katanga defense. The site visit will allow the Chamber to view the configuration of certain sites, the distance between the sites, and other relevant geographical, cultural and social elements that are relevant to the case. It was agreed that the site visit should take place after the defense teams had presented their evidence.

In its latest order about the visit, the Chamber sought submissions on whether the parties considered the site visit necessary. In particular, the Chamber wanted the parties to indicate which sites and locations should be visited, and at those locations, which points of interest should be visited. The Chamber requested explanations of why that point of interest should be visited and how it could assist the Chamber in resolving an issue contested at trial.