‘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.
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.
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.
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.
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.
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.