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Criminals or Victims? The Complexities of Addressing the Requests of ICC Witnesses for Asylum

Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.

On June 27, a Dutch court refused the appeal of three former the International Criminal Court (ICC) witnesses, Floribert Ndjabu Ngabu, Sharif Manda Ndadza Dz’Na, and Pierre-Célestin Mbodina Iribi, for asylum in the Netherlands. The witnesses, who were previously in prison in the Democratic Republic of Congo (DRC) before giving testimony at the ICC, had been held at the ICC detention center in The Hague prior to their June 2014 release into the custody of Dutch authorities. They were returned to the DRC shortly after the court ruling refusing them asylum.

During their testimony in May 2011, the witnesses accused the current president of the DRC, Joseph Kabila, of involvement in serious human rights violations during the Ituri conflict of 1999-2003. The witnesses claimed asylum in the Netherlands, pointing to the nature of their testimony as one reason why they feared persecution if they were to be returned to the DRC.

In Ituri, where these witnesses previously operated as militia leaders, there are strong differences of opinion about what might have constituted a just outcome. Speaking prior to the news of the final Dutch court decision, some Iturians saw the witnesses as victims, arguing that they have suffered significant abuses of their human rights already and should be granted asylum. Others said that the witnesses are criminals and accused them of committing serious crimes in the course of the conflict. For the latter, only a trial would be a fair outcome. Unfortunately, these views are often split along ethnic lines, and the debate has the potential to feed already existing tensions.

Those that argue that the witnesses should have received asylum believe the danger to the witnesses is real. The fact that the three men had been previously detained for a number of years in the DRC without trial is cited as evidence that they would be persecuted on return. In the words of an leader of the Front des Nationalistes et Intégrationnistes (FNI), “Our brothers have already spent more than seven years of their lives in detention in Kinshasa and in The Hague without ever being tried. That is a violation of their human rights. You cannot persecute people like that.” In the words of another man: “The Dutch authorities should help our brothers while they are still alive, rather than sending them back and regretting once they are dead.” This position was echoed by the human rights organization Justice Plus, which said, “In the current context, it would be hazardous and very dangerous to send the three witnesses back to the DRC.”

Of course, it is difficult for external commentators to say whether the witnesses qualify for asylum. They claim they will be persecuted, but international law prohibits those suspected of serious international crimes from getting asylum. For both assertions, the evidence is untested. If the men are not able to qualify for asylum, they might anyway qualify for another type of international protection, for example, under the European Convention on Human Rights (ECHR) or the UN Convention Against Torture. Amnesty International had urged the government of the Netherlands not to deport the men notwithstanding the failure to grant asylum on the basis that this would violate their ECHR guaranteed right to protection from torture or ill treatment in the DRC. It is worth noting that the prohibition on return in the UN Convention Against Torture extends protections to all people, there is no equivalent provision to the exclusion clauses in the 1951 Refugee Convention exempting those who may have committed serious crimes.

Those who argue in favor of the witnesses acknowledge the charges but argue that if the ICC has evidence against them, then the ICC should try them. As summed up by a woman from Mahagi: “If our brothers are criminals, why doesn’t the ICC try them rather than sending them back? It is unjust.” In the words of another civil society activist, “Years ago [in prison in DRC] these people asked to be tried by the ICC. Why can the ICC not try them? Their human rights are being violated and will continue to be violated if they go back to Congo. It is very disappointing.” For their supporters on the ground, it is frustrating that the international community is not doing more. One local community leader said, “Even if we don’t know the international law on the issue, we know that at least witnesses deserve asylum, and if the Dutch authorities are humane they should award our brothers asylum.”

Of course, the ICC prosecutor has exclusive authority, subject to judicial oversight, over who is tried and for what. There would be serious questions about the appropriateness of the ICC exerting jurisdiction in this case. The ICC does have jurisdiction over war crimes and crimes against humanity committed in Congo since 2002, but it is intended to go after “those most responsible.” Prosecutorial resources are limited, and the ICC must select its cases on the basis of its own analysis, rather than the convenience or availability of suspects.

For some on the ground, however, the position of the ICC in distancing itself from the issue is seen as very disappointing. In the words of one local man: “This is a serious irresponsibility on their part, as it is first and foremost for them [the ICC] to guarantee the security of witnesses. Abandoning them to the hands of the Dutch authorities is a violation of their rights … [and] will have serious repercussions on trials, as before coming to testify at the court against an authority, one will have to reflect carefully on one’s own security as the court can do nothing in case of danger.”

The ICC can take measures to protect witnesses and does so in some cases, but some in Ituri see it as biased. In the words of a local woman, “Why do witnesses for the prosecution benefit when it comes to protection measures and around the defense they don’t envisage any measures, it is unjust, it is a double standard.” Of course, despite this perception, the ICC does have mechanisms in place to ensure that protection is doled out fairly. The Victims and Witnesses Unit (VWU) is a neutral organ within the ICC Registry, and it is mandated to carry out risk assessments and provide protection on an equal basis to both prosecution and defense witnesses.

In Ituri, however, not only the ICC but the entire human rights community is viewed, by some, as biased. In the words of one woman from the hills of Mahagi, “Where are the human rights organizations to help us to convince the Dutch authorities to save the lives of our brothers? … Everyone is indifferent and observes silently as they put the lives of our brothers in danger.”

For others, the priority is bringing the witnesses themselves to justice. For the NGO Action Citoyenne contre l’Impunite, “The Dutch authorities should not create an untoward precedent in granting asylum to war criminals. It is out of the question for these people to escape justice. They have blood on their hands and should be tried.”

A community leader from the Hema ethnic group said, “It would not be a good example for people who are sought by the justice system of their country to benefit from political asylum. It is important that the Congolese justice system be allowed to do its work. We think that the ICC has done well to hand the witnesses over to the Dutch and that they should be returned.”

At the level of the ICC, it is the Registry that is responsible for getting the witnesses to the court and, if they are not able to stay in the Netherlands, back to the DRC. In this context, the Registry has negotiated conditions for the return of the witness in an attempt to ensure their safety, such as giving court personnel the right to visit them and eliciting a guarantee from the Congolese authorities that the death penalty will not be imposed. It is not clear what role these guarantees might have played in the decision to return the witnesses or what details are available to the average Iturian about these conditions, but skepticism has been expressed by some informed parties. The human rights NGO Justice Plus questioned, “What are the guarantees that the government of Congo [made] in relation to their security?” In the words of an FNI leader, “How can one imagine that Kabila could assure security for those that have denounced him and who are troubling witnesses for him! It is time that the ICC showed itself to be responsible.”

So who are these people? Are they in fact victims of human rights violations? Or are they war criminals? Or both? In Congo, it depends on who you ask and the issue is, as might be imagined, quite contentious. The Dutch court’s decision indicates the latter, the men were excluded from refugee status on the basis of “serious reasons for considering” that they had been involved in international crimes. Supporters of the men, however, are outraged at the court decision.

Now that they are back in DRC, the focus will need to shift to ensuring that their basic human rights are protected and that procedural guarantees are provided. The ICC’s agreement with the DRC allows for monitoring of their conditions of detention, and this should be scrupulously followed through to ensure that the witnesses are not subjected to torture or other ill treatment. This call has also been made by Amnesty International. A timely, fair, and transparent trial is also essential in addressing these issues, as has been called for by Justice Plus. Of course, there are serious doubts about both the capacity and willingness of the DRC to deliver such a trial, but this is an opportunity for the country to address international concerns by delivering an impartial process.

 

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