“Diplomatic Assurances’ at the International Criminal Court

Previously, the blog reported on the ongoing controversy in the Katanga trial at the International Criminal Court concerning defence witnesses from the Democratic Republic of the Congo who have testified in The Hague and then claimed that the Court should not return them to Kinshasa because they fear harm will come of them.

The Chamber’s first decision met with resistance from the Registry. On 22 June, the Chamber issued another ruling setting out the conditions under which the witnesses may be returned to the Congo, subject of course to the decision of the Dutch government on their refugee claim.

That decision notes that a senior official of the Congolese government provided assurances that the witnesses would be well-treated if returned. This recalls consideration of such ‘diplomatic assurances’ by the Special Rapporteur on Torture and the High Commissioner for Human Rights, who rejected them out of hand as being essentially worthless. A decision of the European Court of Human Rights found them not to be persuasive in a refoulement case concerning Tunisia (although the Court had much earlier accepted the validity of assurances in the legendary Soering v. United Kingdom).

The Trial Chamber’s ruling includes the following:

40. However, independent of whether the DRC authorities are aware of the content of the testimony of the three detained witnesses, the Chamber notes that the Congolese Minister of Justice and Human Rights, His Excellency LUZOLO Bambi Lessa, has solemnly and personally committed himself, on behalf of the highest authorities of the Congolese state, that no harm will befall the three witnesses if they are returned to the DRC. Although such diplomatic assurances cannot substitute an independent risk-analysis by the Court under article 68 of the Statute, they must incontestably be treated with the greatest respect and must be presumed to have been made in good faith. The Chamber observes, in this regard, that the above-mentioned assurances are given within the general legal framework for cooperation between the Court and the DRC under Part IX of the Statute. As was correctly pointed out by the DRC, this framework is based on mutual trust and on the ultimate supervision and control of the Assembly of States Parties. The formal assurances given by the DRC authorities therefore carry great weight as they commit the DRC not only vis-à-vis the Court but also to the Assembly of States Parties. (references omitted)

The Chamber makes a number of orders concerning conditions and circumstances of detention for the witnesses upon their return to Kinshasa. They are to be detained ‘in a detention centre which, in terms of infrastructure and population, is most conducive to offering maximum protection. The VWU is instructed to consult with the DRC authorities to identify whether this is the CPRK Kinshasa, the Ndolo prison, or any other detention centre where the witnesses can be legally detained.’ They are to be held ‘under conditions which protect them from possible aggression by co-detainees. However, this should not lead to their permanent isolation.’ Compliance is to be overseen by the Court’s Victims and Witnesses Unit. The Court is to be able to have an observer at any trial of the protected witnesses. The Registry is instructed to ensure that such measures are in place and report back to the Chamber. When this happens, the Chamber says it will consider that it has complied with its obligations under article 68 of the Statute.
I had always thought that the position on diplomatic assurances of the Special Rapporteur and the High Commissioner was a bit extreme. While practising human rights law in Canada, I had often worked on behalf of American death row prisoners in order to obtain such assurances. Of course there is a difference between an assurance that the death penalty will not be imposed - it is carried out according to law, in principle - and that torture, which is totally illegal, will not take place. The Special Rapporteur and the High Commissioner took the view that if you have to ask for assurances about torture, then there is a problem that cannot be remedied by such assurances. The Trial Chamber seems to have taken a different view of this.