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Dutch Court Rules that Witnesses Must be allowed Asylum Procedure

In late December, the Amsterdam District Court ruled that three witnesses, who testified before the International Criminal Court (ICC) in the trial of Germain Katanga and Mathieu Ngudjolo,  must have their asylum claims processed under Dutch asylum law.

The three Congolese witnesses testified in defense of the two accused. These three witnesses have been detained in the Democratic Republic of the Congo (DRC) for over five years for their alleged role in the killing of UN peacekeepers during the conflict in Ituri, DRC. They all testified that the DRC government, including President Joseph Kabila, was responsible for the attack on Bogoro in February 2003 that forms the basis of the charges against Katanga and Ngudjolo. As a result, they claim that if they are returned to prison in the DRC, they will face persecution, human rights abuses, and possible execution.

The Dutch authorities had at first stated that the witnesses, together with a fourth ICC witness who testified in the trial of Thomas Lubanga, could have their claims processed under Dutch asylum law. They then changed tracks and decided that the claims were not asylum claims but “requests for protection.” The Dutch authorities decided to apply an “alternative procedure” to process the requests. It was not clear what kind of procedure this would entail or whether it would respect the human rights of the witnesses.

The Dutch took this position because they claim the witnesses are not under the legal authority of the Netherlands but rather of the ICC.

However, the Amsterdam District Court has ruled that the asylum procedure must be applied. The Amsterdam court noted that while some Dutch laws are inapplicable to the ICC so that the ICC to function properly, this is only a small portion of Dutch law. According to the Amsterdam court, there is no law or agreement that regulates the application of the Dutch Aliens Act (the asylum law) for people involved with the ICC. Therefore, the court reasoned, the Dutch Aliens Act must be applied to the Congolese witness’ asylum applications, regardless of the ICC’s responsibility for the witnesses.

Thus, it seems that the Amsterdam court ruled that the Netherlands does indeed have jurisdiction over the witnesses for their asylum applications, regardless of who has the witnesses in custody. Rather than viewing the silence of the law pertaining to this issue as exclusionary, the Dutch court considered the silence as inclusionary and pertaining to all people involved at the ICC, not just witnesses or protected witnesses. This creates the possibility for anyone present in the Netherlands due to their involvement with the ICC to seek asylum there. It may also spur the Dutch government to re-negotiate the ICC Headquarters Agreement to regulate this issue.

The court also ordered the Dutch government to complete the asylum procedure by June 28.

It is not clear whether this holding will also apply to the witness who testified in the Lubanga case. His case before the Dutch courts is still pending.

The decision can be appealed within four weeks.