On Monday, lawyers representing three defense witnesses who have sought asylum in the Netherlands petitioned Trial Chamber II for a status conference. The lawyers want the opportunity to present oral submissions on the continued detention of the witnesses in the International Criminal Court (ICC) Detention Center. In particular, the lawyers contend that the witnesses have been detained there for nearly one year without knowing the legal basis of their detention or in whose custody they are being held.
The witnesses testified in defense of Germain Katanga and Mathieu Ngudjolo, who are charged with war crimes and crimes against humanities before the International Criminal Court. Another witness in a similar position testified in defense of Thomas Lubanga, also being tried by the ICC. The defendants deny all charges against them.
In March 2011, the witnesses were brought to the ICC Detention Center in The Hague from the Democratic Republic of the Congo (DRC), where they had been in prison Since March 2007, allegedly with no charges. After testifying before the ICC that the DRC government was to blame for atrocities in Ituri, DRC, the witnesses claimed asylum in The Netherlands. They argued that they would be subject to grave human rights abuses, and possibly killed, if they are returned to the DRC.
This issue has been a contentious and complicated one, involving jurisdictional disputes between the ICC, the Netherlands, and the DRC. A Dutch court, The Hague District Court sitting in Amsterdam, recently held that the witnesses had the right to have access to the Dutch asylum procedure under Dutch immigration law. The Dutch court ordered the government authorities to make a decision on the asylum applications by June 28, 2012. This decision was not appealed by the Dutch authorities, and so constitutes the final verdict on the matter.
The asylum lawyers argue that this decision confirms that the witnesses are within the jurisdiction of the Netherlands. They also argue that there is the possibility that the witnesses could be detained at the ICC Detention Center for years to come, pending possible appeals and review of the asylum decision. This ongoing detention, without knowledge of who is responsible for it or how long it will last, “deeply affects the mental and physical health of the three witnesses,” the lawyers claim.
The two trial chambers at the ICC have concluded that the obligation of the ICC to detain the witnesses has ended. The Lubanga trial chamber has gone so far as to order the return of one of the witnesses as soon as he is healthy enough to travel, unless the Dutch authorities want to intervene to prevent his return.
The Dutch maintain that the witnesses should be detained by the ICC until their asylum applications are completed. According to the submissions of the asylum lawyers, the Dutch government has ended consultations with the ICC Registry about this. According to the asylum lawyers, the government has stated that it will not intervene to prevent the return of the Lubanga witness, arguing that they have no duty to take control of him.
Given these back and forth arguments about who is responsible for the witnesses and the negative impact this has on their well-being, their lawyers have requested that the Katanga trial chamber hold a status conference to hear submissions on the issue.