‘The moment I return to the Democratic Republic of Congo I run the risk of persecution. I will disappear without a trace or be arrested,’ former Congolese militia leader Mathieu Ngudjolo Chui said at the end of a long day, Thursday 16 April, at the district court in Amsterdam, The Netherlands. ‘I urgently request you to grant me protection,’ he said, pleading for asylum which again had been denied by the Dutch government. Despite his uncertain situation Ngudjolo, carrying a small silver cross in the lapel buttonhole of his jacket, seemed mentally strong, while holding a small dictionary, Dutch-French, in his hands.

ICC acquittal

On 27 February 2015 the appeals chamber of the International Criminal Court (ICC), based in The Hague, confirmed his acquittal. The judges’ ruling put a final end to his trial which started in 2009 and saw him charged with crimes against humanity and war crimes for the brutal attack on 24 February 2003 on the village of Bogoro, in the eastern district of Ituri in the DRC. Two hundred villagers were slaughtered that day and Ngudjolo had been held responsible for leading a group of militia involved in the attrocities. The judges ruled however that the evidence against Ngudjolo was lacking. While two of the five appeals judges were in favour of a new trial against the Congolese militia leader, the majority ruled he should be acquitted. This, however, did not make him a free man.

On the runway

Immediately after the decision, still in the ICC building and without his lawyers being informed, Ngudjolo was taken by Dutch police to the main national airport Schiphol and put on a plane to the DRC. During these crucial moments his Dutch lawyer Flip Schüller managed to apply for the asylum request, which led to the upholding of his deportation. While already on the runway the plane returned to the airport building where Ngudjolo was detained. After an initial successful appeal by counsel Schüller against his custody, that decision was overruled by the Council of State. Since then Ngudjolo has been in detention at the airport.

Risks

During the hearing at the Amsterdam district court it became clear the ICC has changed its views on Ngudjolo’s risks if returned to the DRC. Last year the court’s Victims and Witnesses Unit (VWU) was still convinced Ngudjolo would not be safe in his home country. The unit has left that position. While referring to a confidential VWU-report the Dutch state advocate Elisabeth Pietermaat said that ‘if Ngudjolo would fear revenge in Ituri, he better settles in Kinshasa.’ Schüller however said he had received letters, including from Amnesty International, warning his client would face serious security risks in the DRC.

Repetition

The events seem like a repetition of Ngudjolo’s earlier experiences. When he was acquitted in first instance by the ICC on 18 December 2012 (though the judges stressed that deciding ‘an accused is not guilty does not necessarily mean that the chamber finds him innocent’) the Dutch authorities also tried to expel the Congolese ex-warlord. When he was forced to board a plane to the DRC, Ngudjolo requested for asylum in The Netherlands. He was detained at the airport for several months, when in May 2013 the Dutch court ruled he should be released and compensated with 2400 euro by The Netherlands for unlawful detention. Ngudjolo was back in the care of the ICC, which arranged a hotel for him where he could stay.

In 2014 the Council of State, the highest court for administrative matters, decided that the Dutch government were right in denying Ngudjolo asylum referring to the 1F clause in the international refugee convention, which says that protection can be denied if there are serious indications an asylum seeker has been committing human rights violations. The Congolese warlord was however allowed to stay in The Netherlands to await the outcome of the IC’s appeals chamber in the Bogoro-case.

Three witnesses

Ngudjolo is not the only Congolese related to this ICC-case who applied for asylum. Three witnesses, who testified in favour of him before the court, requested for protection in The Netherlands after they delivered their sworn statements. The three men were special witnesses. As former comrade fighters of Ngudjolo they had been in prison without trial for several years in the DRC when they were transferred to The Hague to give testimony in March 2011. The Congolese government, The Netherlands and ICC had agreed they would return immediately after. But their asylum application blocked their return. After years of judicial procedures the State Council ruled however the three witnesses weren’t at risk in the DRC and that The Netherlands could trust the guarantees by the Congolese government that they would be treated well and that a court case would be speeded up. Eventually the three were deported in July 2014. However so far there are no signs of a trial against the three, their Congolese lawyer in the DRC is being threatened and two of them are not getting the necessary medication. ‘They will die,’ a source close to the defence said.

Uncertain fate

On Thursday 23 April the judge of the Amsterdam district court ruled in Ngudjolo’s case deciding the Dutch authorities made no mistake in their handling of the rejected February asylum claim. His lawyer Schüller will appeal. Ngudjolo’s fate is now in the hands of the Council of State, which will decide on his detention, his release or possible deportation to the DRC. For the time being Ngudjolo remains detained at Schiphol airport.

A modest ceremony was held at the International Criminal Court (ICC) in The Hague on the 1^st of April to welcome its new and 123^rd member: Palestine. The vice-president of the court, judge Kuniko Ozaki, said Palestine acquires ‘all the rights as well as responsibilities that come with being a State Party.’ She added: ‘These are substantive commitments, which cannot be taken lightly.’ From now not only Israelis, but Palestinians as well can be prosecuted by the ICC for international crimes – genocide, crimes against humanity and war crimes.

This historic step has led to angry reactions from Israel and the USA, both countries are no party to the ICC. Since the start of 2015 Israel stopped transferring tax revenues to the Palestinians, which amount to some 400 million dollar (last week it was announced the money tap would be reopened). Such reactions are especially painful since the preamble of the Rome Statute, the legal document containing the main rules of the court, refers to the horrors of the twentieth century during which ‘millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.’ A phrase that also refers to the Holocaust.

Human Rights Watch explains in a press release that US President Barack Obama signed into law an act that would cut off aid if the Palestine government would support the ICC in investigating Israeli nationals for crimes against Palestinians. Human rights organisations point out – rightly so – that Palestine has the same right to join the ICC as the other 122 countries who have done so far – including my own, The Netherlands.

Since the ICC will only have jurisdiction over international crimes as of 1 April, the explosion of violence of last summer would formally not be included. In a special declaration the Palestinian Autority has therefore mandated the court to investigate crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014’ when Gaza was bombed by the Israeli army, while Palestinian militants fired rockets on to Israel. In a few weeks’ time 2100 Palestine (mainly civilians) and over seventy Israeli’s (mainly military) were killed. Television camera’s recorded the massive destruction in Gaza.The rules prescribe that after such a declaration the Office of the Prosecution (OTP) has to conduct a preliminary examination to see whether or not the situation meets the criteria to start a full criminal investigation.

In the meantime the Palestinian government has announced that the settlements could be a case as well. Under the ICC rules it is a war crime when an occupying force like Israel is transferring parts of its own population to occupied territory.

The Palestinian accession to the ICC is a big test for all parties involved. The court only comes into action when states are not able or willing to investigate cases themselves. Israel and Palestine can still take their own responsibility. The chances are small this would result in effective prosecutions, but if this happens many at the court will sigh with relief. Not only because the ICC is in favour of national proceedings, but also because of the sensitivity of this file, which could further harm the court. If the ICC would decide to open a Palestine case and out of protest countries would refuse to cooperate with the court, this would badly hamper the functioning of the institution. On the other hand such a case could result into credit for the ICC as well. So far the court is investigating in eight African countries. The 36 suspects are all Africans – militia leaders, government leaders, officials, two lawyers and journalists charged with international crimes and offenses against the administration of justice. A Palestine case would divert the criticism in official African circles that the ‘neo-colonial’ court is targeting Africans.

The matter can also become a test for the UN Security Council. There are signs that the USA is ready to invoke article 16 of the Rome Statute: deferral of investigation or prosecution in situations of peace or security. This article says that ‘no investigation or prosecution’ may be started in such a specific case for a period of 12 months after the Security Council has requested the Court to that effect.

In exchange for a deferral political concessions like a two-state solution could be proposed. But would countries like France and the UK – both member of the ICC and UN Security Council – be okay with exchanging justice  for an uncertain peace and vote for postponing a Palestine case?

As such it is remarkable that Israel seems to fear the court, which hasn’t achieved much result. The ICC, that started operating in 2002, has convicted two Congolese militia leaders. The cases against seven suspects have collapsed. The most dramatic decision fell on 5th December 2014 when prosecutor Fatou Bensouda was forced to withdraw charges against the Kenyan president Uhuru Kenyatta due to lack of evidence. She lost the case because her office had trusted witnesses who lied, while other witnesses withdrew after having been intimidated and threatened and the Kenyan state obstructed investigations.

Even if the ICC would open a Palestine investigation, it is not certain whether suspects would ever be sitting in the dock. There are internal obstacles – the OTP has been marred with problems – and external obstacles – without state cooperation the ICC can’t function. How much access would ICC investigators be granted by national authorities to gather evidence against potential Israeli (and Palestinian) suspects? How likely is it that defendants will be handed over to the court. Similar problems have previously blocked and even ruined cases. The future will tell for which party – the states involved, the international community and the ICC – the Palestine Test will be the heaviest.