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ICC Cannot Decide on Witnesses Release, Trial Chamber Majority Finds

A majority of judges in Trial Chamber II at the International Criminal Court (ICC) have decided that they do not have the authority to release three witnesses who have been detained at the ICC Detention Center since early 2011. Judge Christine Van den Wyngaert dissented, arguing that the ICC is violating the witnesses’ rights and that they should be released immediately.

The witnesses were called to testify for Germain Katanga and Mathieu Ngudjolo, who have been accused of war crimes and crimes against humanity committed in Bogoro, a village in the Democratic Republic of the Congo (DRC). In December 2012, Ngudjolo was acquitted of all charges, and he awaits the appeal judgment in his case. Germain Katanga is still on trial, awaiting a decision about potential changes in the charges against him.

Before coming to testify, the witnesses had been imprisoned in the DRC pending charges related to the conflict there. Therefore, they were incarcerated at the ICC Detention Center during their time in The Hague.

The witnesses’ detention has created a host of legal complications and debates involving the ICC, Dutch national courts, the DRC government, and the European Court of Human Rights. Appeals for the witnesses’ asylum applications, which were initially rejected, are currently pending before Dutch immigration courts. Dutch authorities have repeatedly argued that the witnesses should remain at the ICC Detention Center until their asylum proceedings are completed. The witnesses’ lawyers say this could mean the witnesses are detained—allegedly without charges—for years to come. The DRC government contends that the witnesses should have been returned to the DRC immediately when they finished their testimony.

During their testimony, the witnesses implicated the president of the DRC, Joseph Kabila, in crimes committed in Bogoro. For this, they claim, they will face torture or death if they are returned to the DRC. Therefore, they have claimed asylum in the Netherlands.

While the Dutch authorities have processed these asylum claims, the witnesses have remained in the ICC Detention Center for nearly two years. Their asylum lawyers claim this detention is unfair and have requested the ICC trial chamber to put an end to it. Their lawyers argue that this prolonged detention, without any proper charges against them and without a valid reason, violates Article 5 (the right to liberty and security of person) and Article 13 (right to effective remedy before a national authority) of the European Convention on Human Rights (ECHR).

The trial chamber majority recalled its initial desire to find a quick solution to this urgent and unprecedented situation. The majority complained about the strict approach taken by the Dutch and Congolese authorities and noted that efforts to find a solution through consultations had failed.

Competing Legal Obligations

The majority considered that Article 93(7) of the Rome Statute creates a double obligation—to keep previously detained witnesses in detention during their testimony and to return them to the sending state immediately after they have finished testifying. However, the trial chamber majority noted, the obligation to return witnesses is not absolute.

As it has noted before, the majority explained that there are competing legal norms at stake. First is the obligation under Article 21(3) to apply the Rome Statute as the primary legal authority. The Rome Statute, as noted above, states in

Article 93(7) that the witnesses should be returned immediately after they finish their testimony. However, Article 21(3) also says that the chamber must respect international human rights law—including, the majority noted, the non-derogable (jus cogens) law of non-refoulement, which prohibits returning the witnesses when their human rights might be violated. The chamber majority said that if it had decided to return the three witnesses immediately after their testimony, they would have been deprived of this fundamental right. According to the majority, the only way to comply with this international law rule of non-refoulement was to “temporarily suspend” Article 93(7) and, if the Netherlands agree to grant the witnesses asylum, not to apply it.

The witnesses argued that their continued detention violates their right to liberty. The trial chamber majority found that the right to liberty, and the corollary right to be free from arbitrary arrest and detention, are not non-derogable rights under international law—unlike the principle of non-refoulement. This distinction seemed to influence the majority’s consideration that it was obliged to ensure protection in the case of non-refoulement but not in the case of deprivation of liberty.

The majority did not consider that it was the competent authority to decide whether the witnesses can legally be returned to the DRC without violating the principle of non-refoulement. That question is for the Dutch courts to decide, the ICC trial chamber majority found. It said that if the Dutch courts refuse the witnesses’ asylum applications—meaning that the Dutch courts would have to decide there would be no violation of the principle of non-refoulement—the ICC would then have an obligation to return them to the DRC. However, if the Dutch authorities decide to grant the witnesses’ asylum applications, the ICC would then be unable to return the witnesses to the DRC because it would violate the witnesses’ fundamental rights. In that case, the majority found, it would hand the witnesses over to the Dutch authorities. From a purely legal point of view, the majority said, this would not mean that that they would necessarily be “released” from detention.

Article 93(7) does not allow the ICC to release a person who has been temporarily transferred there—that decision is up to the state that made the transfer. The majority distinguished between the “detention” of the witnesses by the DRC and the ICC keeping them in “custody.” Article 93(7) of the Rome Statute does not constitute an ICC judicial act authorizing the detention of witnesses already held by the sending state, the trial chamber majority concluded. The witnesses were detained according to the Congolese judicial system, the majority said, and therefore it has no competence to evaluate the legal grounds for their detention.

The chamber majority explicitly rejected the idea that the ICC was the “de facto” competent authority to decide their release because it had maintained “physical control” of the witnesses. Article 93(7)(b) of the Rome Statute unambiguously discards such a possibility, the majority found. Indeed, according to the majority, to allow the Court to release detained witnesses after a certain period of time within the framework of a cooperation agreement would impinge on the concept of state sovereignty.

Majority Says the ICC is Not a Human Rights Court

The majority considered that the only conceivable way to order a release would be after a careful and rigorous legal analysis of the legality of their detention by the DRC. This would require disclosures from the Congolese judicial authorities, witness statements, and other evidence to determine whether the detention was justified, the majority opined. The trial chamber majority said that if it were to undertake this type of legal analysis, it would effectively be acting as a human rights court. The ICC was never intended to play such a role, the majority found, and the Rome Statute does not require the chamber to ensure that ICC States Parties enforce human rights in their national legal systems.

The majority found that while the Regulations of the ICC (Rule 192(3)) allows such detainees to raise issues relating to his or her detention, it does not allow the detained witness to request his or her release. In this case, the majority noted, the detained witnesses requested the ICC to review what they consider their arbitrary detention and order their release. The chamber majority, however, considered that the witnesses should request the Congolese judiciary to review their detention. If the Congolese authorities decide to terminate their detention, the ICC would be obliged to release them.

The ICC chamber majority rejected the witnesses’ argument that to make a request to the Congolese authorities would place them under the protection of the DRC and would therefore jeopardize their Dutch asylum applications. The majority found that, in the “very specific circumstances of this case,” this argument had no merit since the witnesses did not deny that the ICC would be bound by a Congolese decision to release the witnesses.

The ICC chamber majority also said that it could not exclude the possibility that the Dutch courts would take measures to free the witnesses. If the Dutch courts determined that their ongoing detention at the ICC was a violation of Dutch international law commitments to take action to protect the freedom of people on their territory, the ICC would have to release them, the majority noted.

The majority concluded that it is not competent to decide whether the detained witnesses can be released. Even if it were, the chamber majority noted, it could not order their release because they could not be released onto Dutch soil without Dutch consent. It is up to the Dutch authorities to conclude their asylum procedures, the ICC trial chamber said, and thereby determine their fate.

Dissenting Opinion by Judge Van den Wyngaert

Judge Van den Wyngaert dissented from the majority opinion. She considered that the ICC was competent to deal with the witnesses’ request for release. She noted that the trial chamber had previously emphasized that the court could not hold the witnesses indefinitely given the chamber’s obligation to respect human rights law found in Article 21(3). She also recalled the trial chamber’s previous calls for a speedy resolution to the Dutch asylum processes, which the trial chamber found could not cause any unreasonable delay to the witnesses’ detention.

However, Van den Wyngaert argued, in spite of these previous decisions, the majority has changed its view regarding the scope of Article 21(3). Now the majority claims that Article 21(3) merely temporarily suspends its obligation to return the witnesses to the DRC so as to give them the right to apply for asylum and to respect the right to non-refoulement, Judge Van den Wyngaert said.

Judge Van den Wyngaert noted that the majority based its decision largely on the distinction between “custody” and “detention.” As discussed above, the majority considered that the witnesses are legally “detained” by the DRC, but are merely in the “custody” of the ICC because the Netherlands has not taken over their custody pending their asylum requests. Judge Van den Wyngaert found this distinction “artificial.” She argued that once the ICC trial chamber decided to delay the witnesses’ return to the DRC—against the DRC’s express objections—the trial chamber became “co-responsible” for the fate of the witnesses, even if that decision did not create a legal basis for their detention at the ICC Detention Center.

The dissenting judge also took issue with the majority’s treatment of the chamber’s obligation to respect international human rights law. According to Van den Wyngaert, the majority set aside its obligation to return the witnesses in order to protect their human right to claim asylum but would not do the same for their right against arbitrary detention. These two human rights are equally fundamental, Judge Van de Wyngaert argued. However, the majority’s treatment of them was unequal, she said. She argued that:

This unequal treatment is especially difficult to understand in light of the fact that it would be the exact same legal provision—i.e. article 93(7) of the Statute—that would have to be suspended in order to give effect to the Chamber’s obligations to respect fundamental human rights. In this regard, I strongly distance myself from the Majority’s suggestion that the reason why article 21(3) prevailed in the first case but not in the second is because the former human right —i.e. the right to apply for asylum and the prohibition against non-refoulement—is a norm of jus cogens from which no derogations are permitted. […] [A]rticle 21(3) speaks of ‘internationally recognized human rights’ and is thus not limited in its application to ‘jus cogens’ or ‘non-derogable’ norms (para 6).

Moreover, she contended, the majority failed to explain the specific circumstances of this case that create an exception to the right to the right to liberty.

Judge Van den Wyngaert argued that the ICC is violating the witnesses’ rights and found “no solace” in the argument that the court is violating their rights “on behalf of the DRC” (para 7). She argued that the majority had failed to balance its obligations to both the witnesses and to the DRC, and instead showed “total deference” to the DRC’s state sovereignty. This position, she claimed, undermines international human rights law and its protections of individuals against the powers of the state. She considered that the majority’s call on the witnesses to seek review of their detention by the DRC authorities was “totally misplaced,” given that “it is precisely from those very authorities that the detained witnesses seek to be protected” (para 8).

According to Van den Wyngaert, the majority’s position creates a dilemma for the witnesses. She noted that they must now choose between risking their asylum claims by bringing their detention claims before the DRC, or to forego their right for review of their detention to protect their asylum applications. The dissenting judge also took issue with the majority’s suggestion that Dutch officials could play a role in protecting the witnesses’ rights to liberty. She argued that, according to the majority’s reasoning, there would be no legal obligation for the ICC to comply with an order to release the witnesses from Dutch authorities.

The chamber is competent to rule on the witnesses’ request for immediate release, the dissenting judge argued. Although there exists a legal basis for their detention by the ICC—Article 93(7) of the Rome Statute—their continued detention is arbitrary, she said. Judge Van den Wyngaert argued that it is uncertain how much longer they will be detained because of the slow and unpredictable Dutch asylum procedures. Because their detention is arbitrary under international human rights law, they should be immediately released from the ICC Detention Center, she concluded. There are territorial, jurisdictional, and substantive bases tying the witnesses to the Netherlands that justify their release to Dutch authorities, Judge Van den Wyngaert stated. She concluded that she would have instructed the Registrar to transfer the witnesses to the Dutch authorities “with the clear understanding that, if their asylum requests were to be definitively rejected and no obstacles of non-refoulement existed, the [ICC] would assume responsibility for their return to the DRC” (para 25).

The witnesses have appealed this decision.

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