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Asylum Proceedings in the Ngudjolo Case: What Happened in the Dutch Courts?

This guest blog is written by Wieteke Theeuwen, who is a Legal Fellow with the Coalition for the International Criminal Court. She holds a Master of laws in Public International Law from Leiden University and an LL.B in Dutch and European Law from Maastricht University. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

On Friday, February 27, the International Criminal Court (ICC) Appeals Chamber confirmed the acquittal of Mathieu Ngudjolo Chui. He had been charged with crimes against humanity and war crimes for a 2003 attack on the village of Bogoro in eastern Democratic Republic of the Congo (DRC).

Immediately after Ngudjolo was acquitted, Dutch authorities escorted him to Schiphol airport in order to deport him back to DRC. Ngudjolo had previously sought asylum in the Netherlands, but his initial application was denied. In an interview with the ICC Observer, his lawyer, Flip Schüller, stated that Ngudjolo was not deported and was allowed to file a second asylum application. He was taken off the plane late that Friday evening. His second application is now pending.

Ngudjolo filed his first application for asylum in the Netherlands on December 25, 2012, immediately after his acquittal by Trial Chamber II of the ICC. Ngudjolo claimed that he would face considerable risks (including torture and death penalty) if he returned to DRC because of his statements during the trial implicating DRC President Joseph Kabila in the Bogoro attack. On July 1, 2013 his application was rejected by the Deputy Minister of Security and Justice (the Deputy Minister), and he was ordered to immediately leave the country.

Ngudjolo appealed this decision, and on May 28, 2014, a Dutch court in The Hague (Rechtbank) ordered the Deputy Minister to review the application. The court decided that the Deputy Minister had not provided enough grounds to justify his decision to reject the application.

The Deputy Minister appealed the lower court order to the Raad van State (RvS), the highest administrative court in the Netherlands. On October 15, 2014, the RvS agreed that the Deputy Minister was justified in rejecting the asylum application.  This decision essentially ended Ngudjolo’s chance at seeking asylum through Dutch courts.

Ngudjolo was not deported because of a travel ban imposed by UN Security Council Resolution 1596, which lists him as commander in chief of the Front des Nationalistes et Intégrationnistes (FNI) and former commander in chief of the Force de Résistance Patriotique en Ituri  (FRPI). It has been reported that Ngudjolo’s lawyers also filed a petition with the European Court of Human Rights (ECtHR) seeking to prevent his deportation based on concerns for his security. Under the European Convention of Human Rights (ECHR), Article 3 forbids states from turning away an individual who might risk torture or inhuman or degrading treatment or punishment.

Under European Union law, while there is no system in place for suspensive effect to asylum decisions, the Asylum Procedures Directive of 2005 obliges EU member states to provide for the possibility of legal remedy or protective measures to await the court procedure in first instance. The Netherlands has implemented the directive by allowing a person to await proceedings by requesting provisional measures, however, this is not available during appeals.

Ngudjolo claims to have the right to asylum under the 1951 Refugee Convention (the Convention), but, according to the Deputy Minister, Ngudjolo could not apply for asylum under the Convention because of his role in the FNI and the FRPI militia groups. The Deputy Minister had serious reasons to believe that Ngudjolo had committed a crime against peace, a war crime, a crime against humanity, or that he had committed a serious non-political crime outside the Netherlands prior to his admission as refugee, which prohibits the Convention from applying to him.

Statements by Ngudjolo himself were used by the Deputy Minister as a basis for his analysis. During the asylum proceedings, Ngudjolo stated that he had been a member of the alliance between the FNI and the FRPI. He had also claimed to have been the superior of Commander Dark, who according to Trial Chamber II was in charge of the militia that occupied Bogoro village. The Deputy Minister also took into account that the UN Security Council had banned Ngudjolo from travel in 2005.

The fact that Ngudjolo was acquitted by Trial Chamber II is not relevant for the decision on his asylum application. This is because the standard of proof for asylum applications differs from that of the ICC. For the purpose of the Dutch asylum procedure his application could be rejected if there are “serious reasons” to believe Ngudjolo committed the crimes.  The ICC threshold requires proof “beyond reasonable doubt” for a conviction, which is much stricter than the Dutch asylum procedure.

Ngudjolo had also argued that he would face treatment in violation of Article 3 of the ECHR should he be returned to the DRC. He based his reasoning on an ECtHR case where the applicant feared that, upon return to the DRC, he would be subjected to questioning by the DRC authorities that could result into torture or other forms of inhumane treatment.

According to the Deputy Minister, Ngudjolo failed to prove that he has reason to fear the DRC authorities upon return. The Deputy Minister claimed that what he had said during the trial about the DRC president had been said publicly by others. The RvS also agreed with the Deputy Minister that Ngudjolo’s case differs from the ECtHR precedent.

Ngudjolo had also claimed that he would be subject to criminal proceedings in DRC, but according to the RvS, Ngudjolo also failed to prove this. In addition, the RvS judgment referenced an amnesty Ngudjolo received in 2007 by a presidential ruling.

The Registry of the ICC issued a note verbale to the Netherlands on December 6, 2013, stating that it would not object to Ngudjolo’s return to the DRC. It was not deemed necessary for him to stay in the Netherlands pending his appeal. However, due to the UN Security Council travel ban, Ngudjolo remained in the Netherlands as his asylum application made its way through Dutch courts. First he was placed in a Dutch retention center, then reportedly at a hotel in The Hague paid for by the ICC.

The new asylum request is currently pending with the Dutch asylum authorities (Immigratie en Naturalisatiedienst). The Deputy Minister will again have to take a decision on the application. Considering the grounds presented by the Deputy Minister in the first asylum request it will be a challenge for Ngudjolo and his lawyers to argue that the situation has changed and that he has the right to asylum in the Netherlands.

The bigger question may be how the ICC and the Netherlands will be prepared for potential acquittals in the future when former defendants have legitimate concerns about their security in their home country. In addition, the same question may apply to convicted persons who, after detention in The Hague and/or serving a conviction in another country, may have serious reasons to fear returning to their countries. Concerns also arise in relation to the ICC’s responsibility for persons who are at risk on account of testimony given during trial. Beyond the legal questions described above, there are political obstacles that will need to be addressed as well.