Congolese witnesses for years in ICC-detention (3)

Why the hurry?

Three Congolese witnesses, who were imprisoned by the DRC, had to testify at the International Criminal Court in a trial in 2011. Upon arrival in The Hague – following a deal with national authorities – the men were detained by the ICC, and would immediately be sent back to the DRC after their testimonies. However, the witnesses applied for asylum in The Netherlands. Now they have spent more than three years in ICC-detention. Their long legal battle will come to an end during a proceeding in June before the Dutch council of state. Then, just before that crucial hearing takes place, the Dutch government tries to lift a court ban on sending the men back to DRC (see previous blogs for part 1 and 2).

Judge M.G.J. Parkins-de Vin still has many questions. Why the hurry, she wonders while addressing the legal representatives of the Dutch government: ‘Did you get any idea of why the urgency, of why the ICC wants to expel them now, while the substantive proceedings in the asylum case take place here, next week at the council of state?’ It might be good to know, Mrs. Parkins adds, that this last stretch will not take long. The council of state will take its decision in June. So why sending the Congolese men back now ‘while if fact they are kept here exactly because of the asylum procedure.’

It is the ICC itself, that exerts heavy pressure on The Netherlands, the two state advocates explain. They refer to a recent order by the ICC Appeal Chamber of 21 May, which reads:

‘The Appeals Chamber is deeply concerned by the fact that (…) the Witnesses continue to be in the Court’s detention centre. The Order of 20 January 2014 clearly and unambiguously instructed the Registrar to implement the cooperation agreement with the DRC and to return the Witnesses into its custody. The Appeals Chamber recalls that under article 44 (2) of the Headquarters Agreement, The Netherlands are under an obligation to carry out, at the request of the Court, the transport of a person in custody from the Court’s premises to the point of departure from the host State.’

‘There is no room for negotiations anymore,’ the state advocates tell judge Parkins-de Vin. The ICC is clearly fed up and doesn’t want to wait for the final results in this asylum case. ‘Apart from that I can only speculate,’ state advocate Elisabeth Pietermaat says.

But judge Parkins insists: why, after such a long time, suddenly there is no possibility to wait for one month until the national legal proceedings in the asylum case are finished? ‘The space you suggest isn’t there anymore,’ Pietermaat answers.

The judge then refers to the Headquarters Agreement, which regulates the relations between The Netherlands as host state and the ICC. If there are problems with transport there are several options to solve these matters: talks, negotiations and even arbitrage. She wants to know what powers the ICC has to demand cooperation from the Dutch authorities? And what happens if the ICC opens the doors of the detention centre? ‘There seems to be a long way to go, and before all those avenues have been taken, there will be a decision in the asylum case anyway.’ And apart from that, the judge says, the big question is whether a summary proceeding (often with a decision within 1 or 2 days) is suitable for such a complex case.

A telephone call

Judge Parkins orders a short break so the parties can rethink strategies and gain more information. Back in the court room Pietermaat explains that officials of the ministry of foreign affairs have managed to quickly contact the registrar of the ICC. In that phone call Herman von Hebel repeated he is bound to follow up the order from his appeals chamber. Things seem stuck. But then Pietermaat suddenly clarifies: ‘Either The Netherlands cooperate with this request, or The Netherlands will take over the detainees from the ICC.’ The judge, who had been asking whether deporting the witnesses now was the only available option, is very interested in that solution, that did not seem to exist a few minutes ago (the defense lawyers have been pressing for this possibility for years). But Pietermaat is quick to explain: ‘If the Netherlands accepts the three men, the playing field changes drastically.’ Her colleague Mrs Van Asperen adds that if the Dutch government takes over the three men, a whole new situation is created. Legally the Congolese will then become ‘ordinary’ asylumseekers.

New questions arrise. The judge wants to know what happens if The Netherlands are compelled to take over the witnesses? And will the protective measures agreed by the ICC and DRC in that case still be valid? The state advocates say this protection is valid now, while the men are still ICC-witnesses, and exactly that is the basis for expelling the men now – suggesting this all might alter when the circumstances change.

The judge closes the hearing. The next day, on 28 May, her decision is published. It is no big surprise that the council of state rejects the request by the Dutch government. Fred Teeven, the state secretary for security and justice, looses this interim-battle. He has ‘not proved that the state is obliged to immediately fullfil the request by transporting the foreigners between 30 May and 3 June 2014 in relation to their return to DRC,’ the decison reads. And anyway, the summary proceeding is not a suitable instrument for such a complex case. More research is needed, the judge concludes, before all the legal questions can be answered. There happens to be an excellent opportunity for this exercise: the 5 June hearing at the council of state, in The Hague.

To be continued…

CONGOLESE WITNESSES FOR YEARS IN ICC DETENTION (2)

A new twist

Three Congolese witnesses, who were imprisoned by the DRC, had to testify at the International Criminal Court in a trial in 2011. Upon arrival in The Hague – following a deal with national authorities – the men were detained by the ICC, and would immediately be sent back to the DRC after their testimonies. However, the witnesses applied for asylum in The Netherlands. Now they have spend more than three years in ICC-detention. Their long legal battle will come to an end during a proceeding in June before the Dutch council of state. Then, just before that crucial hearing takes place, the Dutch government tries to lift a court ban on sending the men back to DRC (see also previous blog for part 1).

Then suddenly, there is a new twist. Two weeks before the crucial sessions at the council of state, where the fate of the three Congolese witnesses will be decided. Fred Teeven, the Dutch state secretary for security and justice, doesn’t want to wait for these hearings anymore. He files a summary proceeding, which takes place Tuesday 27 May in The Hague. Teevens request: an immediate and temporary lift of the ban on sending the three men back to DRC. If he succeeds he will be able to expel the witnesses. A peculiar move. Such a ban, decided by the Amsterdam court in 2013, is a serious thing. Second if the request is granted and the witnesses are deported, they might not be able to be present during the June hearings in their case before the council of state. And what íf they would learn, after having been sent back to DRC, that they have been granted asylum in The Netherlands?

Tension in the corridors

In the corridors of the palace of justice, where court room K2 is situated, the tension between the parties is palpable. The government’s team of eleven lawyers and officials – nine women and two man – reflects the emancipation process that has taken place in those leagues. On the other side the male defense lawyers, Göran Sluiter and Flip Schüller, slightly correct the gender balance. Their three clients are not present. The Netherlands are unwilling to fulfill transport requests to take the three witnesses from ICC detention to a Dutch court. Apparantly it is one way ticket to DRC or nothing.

A camera team of current affairs program Nieuwsuur is filming. Later that evening the item is broadcast on national TV. Speaking to Nieuwsuur ICC Registrar Herman von Hebel (who coincidentally is Dutch) explains: ‘As court we have a very clear position. We need the support and cooperation of The Netherlands to bring these people back.’ Then he refers to agreements between the court and the Dutch State: ‘As ICC we say: the obligation to cooperate with us is more important than respect for national [asylum, TL] proceedings.’ Von Hebel continues: ‘This cooperation will have to be given nów. We want to send them to Congo in the next few days. If it can’t be solved, I am left with nothing else but open the doors’ of the ICC’s detention centre in The Hague. (This is actually more difficult than it seems. If the ICC opens the gates of its detention centre, and the witnesses might try to walk out, they will bump into a second door, which is in the hands of The Netherlands.)

Hearing in room K2

As soon as the hearing in court room K2 starts, the state advocates tell the judge of the council of state that the Dutch government actually has already ordered transport to assist in taking the three witnesses back to Congo. This trip will take place between 30 May and 3 June. Remarkable timing: just before the start of key hearing in the asylum case on 5 June before that same council of state. The Netherlands are ready to roll. Except that there is this court ban on returning the three witnesses.

The two state advocates explain however there is no problem in sending the men back. They will not be in danger in DRC. The death penalty, for instance, will not be applied. The DRC has agreed with the ICC to ensure protective measures for the three when they are returned. The state advocates also point to the situation of a fourth Congolese witness who originally had been in a similar position. This person was also a prisoner in DRC when he travelled, together with the three, to The Hague in March 2011. Although he was testifying in defense of that other Ituri warlord: Hema-leader Thomas Lubanga Dyilo (convicted by the ICC in 2012 and sentenced to a prison term of 14 years). But this fourth witness, who was treated for cancer while in ICC-detention, decided to return to DRC. When he arrived in 2012 in Kinshasa indeed he was jailed, but he was released in September 2013. He is doing okay now, the state advocates tell the council of state.

(Continued in next blog: Congolese witnesses for years in ICC-detention – 3)

Congolese witnesses for years in ICC detention (1)

hungerstrike

‘He is very weak,’ said defense lawyer Göran Sluiter. His Congolese client was now more than two weeks on hunger strike at the detention centre of the International Criminal Court (ICC) in The Hague. Floribert Ndjabu Ngabu had never been charged, never had a trial. He came as a witness to the ICC, which has been detaining him for more than three years. With his hunger strike, which he started on 26 April 2014, Ndjabu protested against his desperate situation and his stalled asylum bid in The Netherlands.

Over the weeks his condition worsened. On 16 May he fainted and was taken to a penitentiary hospital. ‘The entire handling of this matter by both The Netherlands and the ICC is a disgrace. If anything happens to Ndjabu, this is the direct result of incompetence and lack of (judicial) courage and human justice at both the ICC and Dutch level,’ Sluiter said. A few days later Ndjabu (born in 1971 in the Democratic Republic of Congo, DRC) ended his hunger strike. He wanted to prepare himself for the last episode in his quest for asylum.

Arrival

On 27 March 2011 Ndjabu and two other Congolese men were flown from DRC to The Netherlands to testify at the ICC. They were special witnesses. The Congolese authorities had kept them imprisoned – without trial, under bad conditions – since 2005. Upon arrival in The Hague – following a deal between the ICC, DRC and The Netherlands – the witnesses were therefore taken straight to the international detention centre in The Hague. Immediately after their testimony they would be returned to Kinshasa, to be returned to jail. That plan failed however when the men decided to apply, from their ICC cells, for asylum in The Netherlands.

The three men had been called by the defense of two ICC-suspects: Mathieu Ngudjolo Chui (acquitted in 2012) and Germain Katanga (convicted to 12 years imprisonment). All men know each other from the battle fields in Ituri, in the east of Congo. During their testimonies in the ICC court room the witnesses accused the Congolese authorities of massive human rights violations in Ituri, and disclosed that president Kabila had been fully aware that military action would imply severe atrocities. Fearing for their lives after these statements, if returned to their home country, they demanded asylum in The Netherlands. One of the persons supporting them in their bid was Dutch member of parliament Frans Timmermans. ‘A person who comes with incriminating statements about Kabila, doesn’t survive one single day when returned back to Congo,’ Timmermans said. He questioned the Dutch government at the time because he feared The Netherlands would violate the European Convention for the Protection of Human Rights and Fundamental Freedoms, which forbids returning people to countries if there is a risk they face serious risks. ‘That is a holy principle for me,’ he said. Currently Timmermans is minister of foreign affairs in a government that is blocking their asylum and keen to return the three men.

A long legal battle followed. On 14 October 2013, the district court of Amsterdam ruled that the Dutch government ‘rightly’ refused the three witnesses asylum as it is ‘likely’ they were involved in crimes against humanity in Ituri.

Who are these witnesses?

The Congolese men were part of the same militia groups to which the ICC-suspects Katanga and Ngudjolo belonged. Anneke van Woudenberg, senior researcher with Human Rights Watch, knows all key players in the bloody Ituri wars in which the Lendu and Ngiti fought against the Hema. A cruel conflict about gold, power and trading routes that killed at least 60.000 people. Especially with Floribert Ndjabu she has had many conversations. Van Woudenberg told him already during the war that he should control his fighters. But Ndjabu, president of the Front des Nationalistes et Intégrationnistes (FNI), did nothing to stop the atrocities by his Lendu-militia. ‘He was unable, or unwilling,’ Van Woudenberg said in interview by telephone in 2011. The FNI is accused of international crimes, including the murder of nine UN peacekeepers in 2005. Pierre Celestine Mbodina Iribi, better known under his nickname Pichou, was FNI’s minister of defense. He made decisions on military strategy, oversaw the intelligence gathering, ordered arrests and the torture of prisoners, Woudenberg said. Sharif Manda Ndadza Dz’Na belonged to a splinter group, and allegedly also took part in FNI-attacks.

Legal Limbo

The Amsterdam district court not only concluded there is a possibility that the three witnesses might have blood on their hands. The judges also decided the men couldn’t be returned to DRC because: there is ‘a real risk’ they would be detained by Congolese authorities, might ‘not be given a fair trial’ in DRC and even ‘be sentenced to death.’ So they remained detained at the ICC. By now detaining the witnesses has cost the ICC around one million euro – money the court has paid to The Netherlands.

A few months later, on 20 January 2014, the ICC’s appeals chamber ordered its registrar to take ‘the necessary steps’ to return the witnesses ‘without delay’ to DRC. In the same filing the ICC judges told the registrar to consult with the Dutch authorities about ‘the pending asylum applications.’ In fact on 5 June the Council of State, the highest judicial body in asylum matters in The Netherlands, will hold the final appeal hearings in this case. This is the last and crucial phase in this long and complex asylum saga. Adding up all the years behind bars the witnesses have endured almost ten years of unlawful detention, their counsel Sluiter explained.

To be continued in the next blog: Congolese witnesses in ICC-detention (2)

Aleppo

De kleine figuur op de container is Aboude