Congolese witnesses in ICC-detention (2) A new twist


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)

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