Congolese witnesses in ICC-detention (3) Why the hurry?

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…

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