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Prosecution Argues Witnesses have No Basis for Appeal

Three witnesses, who had been in detention in the Democratic Republic of the Congo (DRC), were transferred to the International Criminal Court (ICC) Detention Center so they could testify in the trial against Germain Katanga and Mathieu Ngudjolo in March 2011. They have requested Trial Chamber II of the ICC to order their immediate release. The trial chamber found it did not have the competence to make such a decision; the witnesses appealed. The ICC Prosecutor has argued that the appeal is inadmissible.

Katanga and Ngudjolo are accused of war crimes and crimes against humanity allegedly committed during an attack on Bogoro, a village in eastern DRC. Ngudjolo was acquitted in late 2012 and awaits an appeal judgment, and Katanga’s trial has been stalled for nearly one year pending potential changes in the charges against him.

Legal Bind: No Return or Release

The three witnesses testified that, rather than Katanga and Ngudjolo, the President of the DRC, Joseph Kabila, was responsible for the crimes. Due to this testimony, the witnesses claimed they would be subject to human rights abuses if they were returned to the DRC, as they were supposed to be, after their testimony. They claimed asylum in the Netherlands, leading to a complicated legal debate (see previous posts) between the Netherlands, the DRC, and the ICC.

The Dutch authorities have been unwilling to take custody of the witnesses while their asylum requests are being decided. In February 2013, nearly two years after they arrived in The Hague, the witnesses requested Trial Chamber II of the ICC to authorize their immediate release, claiming that their detention was unjustified. In October 2013, the trial chamber, by a majority, decided that it did not have authority to decide on the release of the witnesses. The witnesses have appealed this decision under Article 82(1)(a)-(b) of the Rome Statute.

No Basis for Appeal, Prosecution Argues

The prosecution has submitted that there was no basis for the appeal under the Rome Statute. It argued that the trial chamber majority decision was not a decision about the ICC’s jurisdiction or a decision denying the release of anyone “being investigated or prosecuted,” the basis for appeals under Article 82(1)(a)-(b) of the Rome Statute. The prosecution also argued that, if the Appeals Chamber goes ahead with the appeal, it should dismiss it because the trial chamber majority acted properly.

In their appeal, the witnesses conceded that Article 82(1)(b) refers only to appeals by parties related to denying the release of suspects and accused persons. However, the witnesses contended, their case is special, as it deals with an issue that was overlooked by the drafters of the Rome Statute: that witnesses might also be detained by the ICC. The prosecution disagreed, arguing that the Rome Statute drafters consciously limited this provision about the right to appeal. The provision is clearly restricted to persons subject to an ICC arrest warrant, as indicated by a plain reading of the Statute as well as ICC Appeals Chamber jurisprudence, the prosecution argued.

Moreover, the prosecution argued, the trial chamber majority’s decision was not one “denying release,” but one on the competence of the court to be able to decide on the witnesses’ release. This is another reason the witnesses do not have the right to appeal under Article 82(1)(b), the prosecution said.

Article 82(1)(a) is also not a sufficient basis for the appeal, the prosecution argued. Article 82(1)(a) gives a right of appeal to decisions on jurisdiction or admissibility, but these are limited to Article 19 decisions on the jurisdiction of the court or the admissibility of a case, the prosecution said. In this decision, the chamber did not conduct an examination of the temporal, substantive, or personal jurisdiction of the court, the prosecution argued.

Prosecution Claims Trial Chamber’s Decision was Correct

The witnesses argued that they are being unjustifiably detained under Article 93(7) of the Rome Statute. Their international human right to liberty, protected by Article 21(3) of the Rome Statute, requires their release, they claimed. The witnesses argued that the trial chamber has an obligation to rule on their release because it involves protection of their human rights. The chamber should have interpreted Article 93(7) in light of Article 21(3)—which would require their immediate release—the witnesses claimed.

According to the prosecution, the trial chamber majority decision complied with the Rome Statute and was in line with relevant human rights standards. The trial chamber acted properly by consulting with the Dutch authorities about the pace of the asylum proceedings and by reviewing the necessity of their detention by the DRC. The trial chamber should conduct similar periodic reviews of the witnesses’ detention, the prosecution suggested, to ensure that the continued detention of the witnesses is still necessary.

The chamber did interpret Article 93(7) in accordance with Article 21, the prosecution submitted. Article 21(1) states that Rome Statute provisions should take precedence over international human rights law, the prosecution contended. Article 21(3) provides that the trial chamber must apply and interpret the Rome Statute so that it is consistent with internationally recognized human rights. Article 21(3) does not mean the trial chamber can ignore or change other provisions in the Rome Statute, the prosecution maintained—but rather only controls how those provisions should be interpreted and applied.

The trial chamber was correct in concluding that the right to liberty has exceptions, the prosecution argued, and did not violate the witnesses’ right to liberty by its interpretation of Article 93(7). Indeed, the prosecution noted, the chamber actively attempted to protect the witnesses’ rights by facilitating the witnesses’ access to DRC authorities for a challenge before DRC courts, by calling on the Dutch to move swiftly in the witnesses’ asylum claims, and by its original decision not to return the witnesses in light of the principle of non-refoulement.

The prosecution contended that the witnesses had ignored Article 21(1), which states that the Chamber must first apply the Rome Statute, then rules of international law (including human rights laws). Under this rationale, the court’s obligations to the DRC under Article 93(7) would take precedence over the direct application of international human rights law. The prosecution agreed with the chamber’s conclusion that the ICC is not a human rights court.

The witnesses also argued that the chamber was incorrect to distinguish between their “detention” by the DRC as opposed to the ICC having “custody” over them. The prosecution disagreed. According to the prosecution, the witnesses are not detained under Article 93(7), but under DRC law. Article 93(7) is similar to provisions found in many mutual legal assistance agreements and is important to ensure that states cooperate with the Court, the prosecution noted. The prosecution agreed with the Chamber majority that evaluating the merits of the DRC’s decision to imprison these witnesses would severely curtail its sovereignty.

The trial chamber was correct to find that it did not have jurisdiction over the issue, the prosecution said. Reviewing the merits of domestic decisions on the detention of persons transferred to the court as witnesses under Article 93(7) is not an issue that was accidentally left out of the Rome Statute, the prosecution argued. Rather, according to the prosecution, it simply does not fall within the ICC’s jurisdiction, as intended by the Rome Statute drafters.

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