Chamber Rules on Refugee Claim by ICC Witnesses

Several weeks ago, the blog reported on a debate underway before Trial Chamber II of the International Criminal Court concerning claims to refugee status by certain defence witnesses who had been brought from the Democratic Republic of the Congo to The Hague in order to testify. The witnesses argued that they would be threatened if they were returned to the Congo, and that the Registry, which is responsible for the protection of witnesses, would not be able to do this adequately.

Yesterday, the Chamber issued its ruling on the issues. Right now, the decision is only available in French.

The Chamber had requested the Registry to appoint an ad hoc counsel for the three witnesses. In response to a request from the Chamber, the ad hoc counsel said he had not filed a refugee claim with the Dutch authorities because he considered this to be outside his mandate, which was to see to the interests of the witnesses before the International Criminal Court.

The applicable provision is article 93(7) of the Rome Statute:

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.

The ad hoc counsel for the witnesses asked that it be suspended, given the threats to the witnesses if they were returned to the Congo.

Defence counsel for Katanga added an interesting argument based on the European Convention on Human Rights. The Convention prevents the refoulement of the three witnesses to the Congo, if there is a real risk of torture or a violation of the right to life. It is not clear from the decision whether the defence was arguing that the Court had the responsibility to enforce the Convention, however (see para. 35).

The Prosecutor took the position that the three witnesses, who were in detention in the Congo, remained subject to the custody of the Congolese authorities even when they were temporarily transferred to the Court. The Prosecutor did not think there was any particular threat or risk of harm to the witnesses were they to be returned (see para. 39). The Registry concurred with the Prosecutor, adding its own concern that such proceedings might jeopardize future cooperation between the Congo and the Court.

In its ruling, the Chamber interpreted the scope of the duty that is imposed upon the Court with respect to the protection of witnesses. The Chamber said that this is limited to protection from risks that are associated with the presence before the Court. The Chamber said that the Court was not responsible for threats to fundamental rights in a more general sense, and specifically when these were not a consequence of the testimony before the Court. According to the Chamber,

L'article 21-3 du Statut ne fait pas obligation à la Cour de veiller à la bonne application, par les Etats parties et dans le cadre de leurs procédures nationales, des droits de l'homme internationalement reconnus. Il exige seulement des Chambres qu'elles veillent à appliquer le Statut ainsi que les autres sources du droit mentionnées à l'article 21-1 et 21-2, d'une manière qui ne soit pas incompatible avec les droits de l’homme internationalement reconnus ou qui ne les violent pas. (para. 62).

For readers of the blog who do not understand French, here is what one gets from Google translate :

Article 21-3 of the Statute does not require the Court to ensure the effective implementation by States parties under their national procedures, human rights internationally recognized. It only requires Chambers to ensure implementation of the Statute and other sources of law mentioned in Article21-1 and 21-2, in a manner not inconsistent with international human rights recognized or that do not violate it.

It’s a pretty good translation in my book, and shows how helpful Google translate can be in making foreign-language material more accessible.

The government of the Netherlands had invited the Chamber to consider the risks associated with refoulement, but the Chamber said this was not its responsibility. The Chamber said it could not ignore the prohibition on refoulement, but as the Court is without its own territory it is unable to address the issue appropriately or implement a remedy.

The Chamber noted that the three witnesses were perfectly entitled to make a refugee claim. It cited the 1951 Convention and protocol, as well as article 14 of the Universal Declaration of Human Rights (‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’) It added that the principle of non-refoulement was one of customary international law (para. 68).

According to the Chamber,

la Chambre ne se trouve pas en mesure d'apliquer l'article 93-7 du Statut dans des conditions qui soient compatibles avec les droits de l'homme internationalement reconnus, comme l'exige pourtant l'article 21-3 du Statut. En effet, si les témoins étaient immédiatement renvoyés en RDC, ils se trouveraient alors dans l'impossibilité d'exercer leur droit de demander l'asile et ils se trouveraient privés du droit fondamental à l'exercice d'un recours effectif.

Briefly, the Chamber suspended article 93(7) because the immediately return of the three witnesses to the Congo would make it impossible for them to exercise their right to claim asylum.

What to do with the witnesses while their asylum claim is pending in The Netherlands? The Chamber said that the Court could not keep the three in custody indefinitely.  I'm not sure how long such proceedings last in The Netherlands but if the applicants don't succeed and take the case to Strasbourg and the European Court of Human Rights, this could take some time. Almost as much time as it takes the Court to issue an arrest warrant!