A fairly simple-seeming decision taken last week by a Dutch district court may have major consequences on relations between the International Criminal Court, its cooperating countries and the Netherlands. On 26 September, the court ruled that the custody of three Congolese men should be transferred from the ICC's hands to those of Dutch authorities.
In 2011, the unidentified Congolese men were summoned to appear at the ICC as witnesses in the case of Congolese militia leader Germain Katanga. In their testimonies, they accused Congolese authorities and DRC President Joseph Kabila of severe crimes against humanity. Following their testimony, the men applied for asylum in the Netherlands under the premise that they would be persecuted and face inhumane treatment in the DRC for having made accusations against their own government.
Before coming to the Netherlands, the men sat in a prison in the DRC. Two of them were jailed in 2005 under the unproved accusation of involvement in the murder of UN troops. The third had been locked up since 2010 under suspicion of high treason and planning a coup; no local legal procedure has been conducted so far.
Any ordinary asylum?
According to Göran Sluiter, one of the men's defence lawyers, both the ICC registrar and the Dutch state were opposed to the men's application for asylum in the Netherlands. But this past December, a Dutch court ruled that their application should be treated as though it were any ordinary asylum case transpiring on Dutch soil. As Sluiter explains it: "Dutch court clearly ruled that they are illegally in ICC's detention and it's the responsibility of the Dutch authorities to take care of these witnesses. They cannot leave them with the ICC without any prospect of an ending."
However, Dutch authorities insisted on keeping the three men at the ICC detention centre - what Joris van Wijk, an assistant professor of criminology at VU University Amsterdam, refers to as "no man's land".
Now, unless the men request an appeal case, Dutch authorities have four weeks to announce their preparedness in taking over custody from the ICC. To Sluiter's understanding, asylum seekers like these men are not detained unless it is under extraordinary circumstances. "But that is up to the Dutch state to decide. In any way we will closely supervise everything [as it] proceeds according to Dutch law," Sluiter says.
The Congolese men are likely to be seen as an exception to the Refugee Convention, whose Article 1F says it does not apply when there are serious reasons for considering they have committed war crimes.
"Article 1F is quite straightforward," says the professor. "You don't have to prove they are actually guilty of a crime. Plus, the fact that the DRC has a questionable judicial system doesn't matter in this case. The Netherlands could base its decision, for example, on information stemming from reports by Human Rights Watch and Amnesty International."
In 2005, Human Rights Watch reported on the crimes to which the three Congolese men are linked. One of them is said to be the former president of feared rebel group the Nationalist and Integrationist Front (FNI).
Still, it remains the Netherlands' duty is to protect people who can fall into serious danger upon being sent back to their home country.
"Even if the 1F rule applies to their situation, it doesn't necessarily mean they can be sent back to the Congo," explains Menno Kamminga, a professor of international law at Maastricht University. Another potential consequence is that, now that these Congolese men are in Dutch hands, they can be prosecuted in their land of supposed refuge. "If there is reason enough to prosecute them - and that seems to be the case - then the Netherlands has the obligation to do so. But to make a case they need good evidence. This requires a lot of time and expenses," says Kamminga.
According to Kamminga, the relationship between the ICC and its host country was not meant to result in transfers of custody. Last week's ruling is therefore remarkable. "This is what the Netherlands was afraid of when the ICC started," he says. In the Headquarters Agreement between the International Criminal Court and the Host State, both parties agreed that persons summoned by the ICC are not subject to Dutch law. Technically, this agreement has now been breached.
Last week's ruling may also lead to significant consequences for the ICC's relations with cooperating countries, says Van Wijk. "If the defence in a future ICC case calls detained witnesses who after testifying apply for asylum, in the end, the Netherlands may be obliged to take over responsibility. This [ruling] could change the relationship between the ICC and other countries in the future. Now that it seems possible for ICC witnesses to receive protection from the Netherlands, other countries might not easily let the ICC 'borrow' their detainees."
A fourth Congolese witness also awaits asylum in the Netherlands. His case was not concluded with those of the other men since he testified not against Katanga, but in the ICC case against convicted warlord Thomas Lubanga.