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)