In a hotly contested case that has pitted the International Criminal Court (ICC) against the Dutch state, the Dutch Immigration and Naturalisation Service (IND) will now accept the asylum applications of four Congolese witnesses who testified at the ICC. But the men are still being held in the ICC prison almost a year after arriving in the Netherlands, and their release seems nowhere in site.

“For both the ICC and the Netherlands it is a disgrace that they are detained and no one knows why,” says one of the men’s Dutch lawyers, Göran Sluiter. “It is more embarrassing considering that Kenya’s leaders, whose cases were confirmed—real suspects—are free, but people without a title for detention are in the ICC detention unit…. How long will this go on?”

The four Congolese defence witnesses were sentenced to jail in the DR Congo for 60 days back in 2005 but have remained in prison 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 accused current President Joseph Kabila of being responsible for an attack that killed UN peacekeepers in February 2003. Because of this, they argued 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.

Passing the buck

Dutch authorities have consistently argued that the men are not in their jurisdiction and refused to follow an ICC recommendation to let them apply for asylum. But an Amsterdam district court ruled last month that
the witnesses must be given the right to apply for refugee status in the Netherlands. After the IND missed the deadline to appeal, it became clear this week that Dutch authorities will not oppose the court’s ruling.

“No one wants to take responsibility for their detention—neither the Netherlands nor the ICC,” says lawyer Sluiter. “But now that we know they will be in the normal asylum process, it creates a connection with the Dutch. They are finally in the Dutch system.”

Sluiter says the defense team, while moving ahead with the asylum procedure, is considering its options to secure the release of the men. They have also filed a complaint against DR Congo with the UN’s Human Rights Committee.

A furious 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. The ICC had made an agreement with the DRC so that they could testify in person, providing they would be returned—an agreement the court didn’t honor.

“We’re a bit desperate,” says Sluiter, whose “extremely disappointed” clients have now been in custody for six years in total. He calls it a “bizarre Kafka situation,” where the actors shift the responsibilty and hide behind each other while his clients languish. “It’s difficult to explain to them what’s going on…. And if you have no idea why you’re being detained, it’s more difficult to understand.”