As I understand the dispute, the three witnesses are in the custody of the Court and are asking the Trial Chamber not to hand them over to the Dutch authorities given the risk they will be returned to the Democratic Republic of the Congo.
It seems this situation is unprecedented in international criminal law. The Headquarters Agreement between The Netherlands and the Court does not contemplate this sort of development. There are cases at the International Criminal Tribunal for Rwanda of acquitted persons who remain in Tanzania as they have nowhere else to go (except Rwanda, and they refuse to return there).
Article 93(7) of the Rome Statute governs the transfer of witnesses:
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
What are the obligations of the international tribunal in such circumstances? Aside from the provisions of the Refugee Convention, which are somewhat narrow in scope and which also have exclusion clauses for persons suspected of perpetrating international crimes, international human rights law prohibits the refoulement of an individual to a state where he or she would be subject to a real risk of torture, killing, and possibly other violations such as those concerning the right to a fair trial. On this, see the workshop of the Organization for Security and Cooperation in Europe of a few years ago. It is a bit out of date, in that it was prior to the Saadi v. Italy decision of the European Court of Human Rights. Indeed, it is not beyond the realm of possibility that this case ends up before the European Court of Human Rights.
Amongst those who made representations before the Trial Chamber on Thursday was Cyril Laucci, a lawyer with the Registray. By coincidence, Cyril met with students at the Irish Centre for Human Rights on Tuesday. He was asked by one of them whether it was a bit dull to work at the Registry. It sure doesn't sound dull to me!
During the Conference, Judge Van den Wyngaert raised the role of article 21 of the Statute, which reads as follows:
1. The Court shall apply:The hearing continued yesterday (Friday) but the transcript is not yet available on the website of the Court.
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;...
Thanks to Yvonne McDermott and Niamh Hayes.