This blog is a follow-up to the guest blog issued on March 13, 2015, titled “Asylum Proceedings in the Ngudjolo Case: What Happened in the Dutch Courts.”
On December 18, 2012, judges at the International Criminal Court (ICC) acquitted Mathieu Ngudjolo Chui of charges of crimes against humanity and war crimes stemming from a 2003 attack on the village of Bogoro in eastern Democratic Republic of Congo (DRC). Fearing for his safety upon his return to the DRC, Ngudjolo filed a first application for asylum in the Netherlands on December 25, 2012, shortly after his acquittal by Trial Chamber II. This application was rejected; however, Ngudjolo remained in the Netherlands to await the ICC Appeals Chamber decision on his acquittal. After the Appeals Chamber affirmed his acquittal on February 27 of this year, Ngudjolo reapplied for asylum in the Netherlands.
Last week, on April 23, the regional court (Rechtbank) in The Hague confirmed the rejection of Ngudjolo’s renewed asylum application. The Rechtbank addressed three issues. First, the Rechtbank looked at the question of whether or not the right asylum procedure was applied. Second, the Rechtbank assessed whether Ngudjolo and his lawyers presented new evidence that could possibly lead to a different outcome from the previous asylum application. Finally, the Rechtbank looked at the possibility of granting provisional measures.
Ngudjolo and his lawyers argued that the Dutch authorities should have applied a prolonged asylum procedure (as opposed to the regular procedure, which has a set time frame) because of the special circumstances of this case. The fact that this had been promised to Ngudjolo by a civil servant during the hearing immediately following his asylum application raised legitimate expectations for Ngudjolo to rely on, argued his lawyers. The prolonged asylum procedure allows the authorities more time and an additional hearing with the applicant to assess an asylum application. Awaiting the decision on the asylum procedure, Ngudjolo had requested provisional measures to prevent deportation before the decision was issued.
The Rechtbank did not accept the argument that the promise of a civil servant should have changed type of procedure that was applied. It subsequently assessed whether the prolonged asylum procedure should have been applied based on possible special circumstances in this case (regardless of the legitimate expectations). The Rechtbank decided that no mistakes had been made in applying the regular asylum procedure. The prolonged asylum procedure can only be applied in a limited number of circumstances, none of which applied to Ngudjolo.
In reference to the second issue addressed, the Rechtbank decided that Ngudjolo and his lawyers failed to present new evidence that could have led to a different outcome.
Lastly, Ngudjolo’s lawyers had asked for provisional measures to give the court time to investigate the matter more in depth. The Rechtbank rejected this as a result of the decision in the main case. The court held that it would not be logical to grant provisional measures after the request in the main case had been rejected.
It is possible for Ngudjolo to appeal the decision regarding in main case. However, the appeal does not have suspensive effect.
In the meantime, the Netherlands is planning to deport Ngudjolo on Friday, May 1. To prevent this from happening Ngudjolo’s lawyer in the ICC case, Jean-Pierre Kilenda, has written an open letter to the President of the Assembly of States Parties (ASP), the governing body of the ICC. In the letter, Kilenda writes that “[a]ll the efforts undertaken by his Counsels, both Dutch and international, to obtain either a political asylum in the Netherlands, or his release, proved to be in vain, as the Dutch State found an absence of real risk of persecution for Mr. Ngudjolo in case he returned to his country of origin.” Kilenda is appealing to the sense of responsibility of the States Parties, hoping to find a “politically feasible solution, materialised in the right to reside in a secure country.”
On February 26, 2015, Ngudjolo’s lawyers requested an interim measure from the European Court of Human Rights to keep Ngudjolo in the Netherlands. This request was rejected on February 27. The letter to the ASP President indicates the only solution is a political one.
It is interesting to note that Ngudjolo is still subjected to a UN travel ban imposed by UN Security Council Resolution 1596, which lists him as commander in chief of the Front des Nationalistes et Intégrationnistesand former commander in chief of the Force de Résistance Patriotique en Ituri. The latest update of this list dates from February 6, 2015. This travel ban was the reason Ngudjolo was not deported after his first asylum application was rejected in 2013.
On Tuesday, Ngudjolo’s humanitarian visa application in Switzerland was also rejected by the Swiss embassy in The Hague. Ngudjolo is reportedly planning to file applications with the United States, Cuba, Germany, Sweden, Venezuela, and Uruguay.
We will now have to wait and see what happens on Friday. Concerns remain in relation to the ICC’s responsibility for persons who are at risk on account of testimony given during trial and those who might be acquitted in the future.