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Court Releases Confidential Documents to Witness’ Asylum Lawyers

Trial Chamber II at the International Criminal Court (ICC) released confidential documents to be used in the Dutch asylum hearings for three witnesses who testified in defense of Germain Katanga and Mathieu Ngudjolo Chui. Katanga and Ngudjolo are accused of war crimes and crimes against humanity committed in the Ituri district of the Democratic Republic of the Congo (DRC).

Three witnesses, who had been detained in the DRC for their alleged role in the murder of UN peacekeepers, were called to testify in defense of the accused. They were transferred to the ICC detention center with the agreement of the DRC and the Netherlands. The men testified that the President of the DRC, Joseph Kabila, was responsible for serious crimes and human rights violations committed in the Ituri conflict. For this testimony, they claim, they will be persecuted and their rights will be violated if they are returned to the DRC. Therefore, they have applied for asylum before the Dutch immigration authorities. This issue has been reported on extensively here.

The defense team for Katanga requested that six confidential documents be disclosed to the lawyers representing the witnesses in their asylum claims. The documents, the defense argued, might be relevant to the lawyers in a hearing on the asylum claims. The documents, the defense claimed, relate to the conduct of the witnesses in the period relevant to the asylum proceedings.

The Judges in Trial Chamber II granted the motion in part. Some of the documents were public, the Court noted, and did not need to be released. One of the confidential documents was identical to these public documents, except that it had been signed by a member of an international NGO. The Chamber considered that it was therefore not necessary to release the confidential version.

Other confidential documents could be released to the lawyers of Mr. Pichou Iribi and Mr. Floribert Ndjabu on the condition of strict confidentiality, the Chamber held. According to the decision, the lawyers can only share the documents with the Dutch authorities competent to rule on the asylum claims, and no one else. If they must be shared during a hearing, that hearing should be done in closed session, Trial Chamber II held.

Another requested document was provided to the prosecution by the United Nations under Article 54(3)(e) of the Rome Statute on the condition that it only be disclosed to the parties in the Katanga-Ngudjolo case. Therefore, the Trial Chamber held that the asylum counsel would need to request the prosecution to obtain permission from the UN to disclose the document.

The documents discussed above were for use in a July 23 hearing. There is as yet no information available on the outcome of the asylum decisions.