Four Congolese witnesses testifying at the International Criminal Court (ICC) in The Hague, find themselves caught in a legal wrangle, which could at once set a legal precedent and make them the last of a kind to win asylum.

By Richard Walker, Amsterdam

The four defence witnesses were [sentenced to] jail in the DR Congo for 60 days back in 2005 but have remained in jail ever since – until defence lawyers in the ICC trial against alleged Congolese warlord Germain Katanga requested they be brought to The Netherlands to give evidence in 2011. Their testimony accuses current President Joseph Kabila of being responsible for an attack which killed UN peacekeepers in February 2003. Because of this, they claim, if they are returned to prison in the DRC, they will face persecution, human rights abuses, and possible execution. They applied for asylum in The Netherlands on May 12, 2011.

Bizarre

Lawyers representing the four men argue that the Dutch Immigration Department has deliberately bent or circumvented the rules since this application was made, treating the men entirely differently to other asylum seekers. “It’s absolutely bizarre – from the beginning they said they would follow the directions and decisions of the ICC. But when the ICC said asylum should be open to (the witnesses) they were unhappy and started changing the rules of the game”, says the group’s lawyer Göran Sluiter. “The idea behind it is that people detained in its (ICC) Scheveningen detention unit should not be interfered with by the Dutch… but now you have the bizarre situation that the ICC wants the Dutch to interfere in this case… there is no basis in law to say asylum law does not apply to people in a detention unit” he said.

Lend only

The government of the Democratic Republic of Congo is not amused by developments in the case. Kinshasa has threatened to block the transfer of any more witnesses to the ICC unless those currently on loan to the Court are returned, according to a source close to the ICC.“It’s time for the courts to be more critical of the DRC and not be subject to this kind of blackmail”, says Goran Sluiter.
The ICC made an agreement with the DRC so that they could testify in person, providing they would be returned.

To date, the ICC prosecutor’s office has decided not to make any more requests for people in jail to come physically to testify in The Hague. They will in future work with video systems if they need testimony from an incarcerated witness. On the defence bench, there have been no similar requests sent to the DRC since the start of the affair.

Kafka

On December 6, 2011, the Congolese applications for asylum were debated at a Dutch municipal court in Amsterdam. The applicants themselves were not present, despite a request from the court and full permission from the ICC, in whose Scheveningen detention centre they have resided since May. It transpires Dutch authorities refused to transport them. “It’s clear that this sort of situation was not foreseen coming up with all the regulations governing the ICC. We can all certainly agree on that.” said Chief Judge Mrs. H. B. van Gijn, who will decide in the coming weeks whether the next hearing will see the men in person or on live video monitors from the detention centre.

The relationship between the Dutch Immigration Department, the Dutch Ministry of Foreign Affairs, the ICC and the DRC in this case has produced, in the words of one participating lawyer, moments of ‘pure Kafka’. The Dutch government is now caught in a situation for which there are contradictory rules between the Geneva Convention Relating to the Status of Refugees and ICC agreements with Netherlands and DRC. It doesn’t want to be seen to side with either the ICC or the DR Congo.

Human rights wronged

Representing the Dutch Immigration department G.M.H. Hoogvliet said, “there are other considerations here - the government has to consider its relationship with other states, and their potential consequences.” Repeated IJT requests to the Dutch government for clarification of this statement have not been answered.
Alluding to the same political interference in the process of law, counsel for the applicants, F. Schuller, contended that, “These peoples’ rights have become totally subordinate to the interests of Dutch foreign policy.”

There is one precedent for the current situation. The former Rwandan Justice minister Agnès Ntamabyariro requested asylum after testifying at the Rwanda Tribunal (ICTR), arguing that she had been tortured and detained for nine years with no trial or evidence presented against her. The day she made that request the ICTR organized an emergency flight, sending her back to Kigali.

In January 2009, she was sentenced to life imprisonment .