Djokaba Lambi Longba, a witness in the International Criminal Court’s (ICC’s) trial of Thomas Lubanga who has requested asylum in the Netherlands, must be returned to the Democratic Republic of the Congo (DRC), a Trial Chamber at the ICC confirmed recently. After considering submissions from Longba’s lawyers, Trial Chamber I refused to revoke its previous order for his return and confirmed that once his health permits, Longba must be returned to the DRC.

Longba and three other witnesses from the DRC, who testified in the ICC’s trial of Germain Katanga and Mathieu Ngudjolo Chui, have been in detention in the DRC for over five years. The witnesses came to The Hague to testify in defense of the three Congolese defendants on trial at the ICC.

After their testimony, the witnesses claimed asylum in the Netherlands. They argued that they would be subject to human rights abuses – and possibly murdered – if they were sent back to the DRC. The various legal matters related to their claims have been discussed on the www.Katangatrial.org and www.Lubangatrial.org websites.

While giving testimony and pending resolution of their asylum claims, the witnesses were detained at the ICC detention center, according to an agreement between the ICC and the DRC.

This latest decision from the Lubanga Trial Chamber comes after Longba’s lawyers submitted a brief calling questioning the legality of the Dutch asylum process and asking the Chamber to revoke its order for Longba’s return, and instead have him transferred to Dutch custody.

The asylum issue is a complicated one that seems to be a contest over who has jurisdiction over the witnesses. Although they are currently being held in the ICC Detention Center, it is not clear that this means the ICC has custody over the witnesses, or whether the DRC has in essence “loaned” the witnesses to the ICC and still retain custody over them. Complicating this matter is the fact that they are physically present in the Netherlands and have petitioned the government of the Netherlands for asylum.

At one point in this process, the Dutch confirmed that the witnesses could have their asylum claims processed under Dutch asylum law. However, the Netherlands then backtracked, saying that asylum law was inapplicable and that the Congolese witnesses’ requests would be considered “requests for protection.” It is not clear what this means legally or what kinds of procedures would be put into place to process a “request for protection.” In particular, Longba’s lawyers argue that the process risks violating due process guarantees that are mandated for asylum applications.

However, in its most recent decision, Trial Chamber I held that all of these matters are outside of its powers. Longba was able to, and did, file his application, which the Dutch authorities confirmed would be processed under Dutch asylum law. Therefore, the Chamber considered, Longba had the “real” (as opposed to theoretical) opportunity to make an asylum claim. This meant, the Chamber stated, it had fulfilled its duties related to the issue. The fact that the Dutch authorities changed course and reclassified the asylum application to an undefined “request for protection” is a matter for the Dutch authorities to decide, the Chamber held.

Based on this reasoning, the Trial Chamber ordered that Longba be sent back to the DRC once he is healthy enough to travel.

“It is for the Dutch authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings,” the Chamber noted.

It seems that the matter of Longba’s detention and return is now completely in the hands of the Dutch authorities. While waiting for his transfer back to the DRC, the Chamber ordered that the ICC Victims and Witnesses Unit to look into the possibility of arranging family visits or video link calls with his family.