Despite international concerns the Congolese ICC-witnesses are returned to DRC
It was late afternoon, 5 June 2014, when the hearing of the Dutch Council of State came to an end. This was the last public court session to be attended here in The Netherlands by the three Congolese witnesses, who had testified at the International Criminal Court in 2011 and then asked for asylum. Floribert Ndjabu Ngabu, who recently had been on hunger strike, looked remarkably fit. His face was slim. But physically he made a strong and vital impression. Pierre Celestin Mbodina Iribi followed the session with great alertness. It was Charif Manda Ndadza Dz’Na who seemed sick and utterly depressed. During most of the court hearing, Dz’Na sat leaning over with his head on his arms touching the table in front of him.
For three hours the opposing parties – the Dutch lawyers of the Congolese men versus the State Advocate representing the Dutch government – had pleaded their cause and answered the questions of the three judges of the Council of State. Now it was over.
From their chairs the judges oversaw how the legal representatives of the authorities packed their documents leaving the court room and how the lawyers shook the hands with their three clients and the interpreter and left the place with rolling suitcases. A Dutch policeman walked to one of the Congolese men who was holding a pen. ‘This is not allowed,’ he said and confiscated the pen, which apparantly was seen as a potential weapon. ‘Are they already on their way?’ the policeman then asked in his walky-talky. He was waiting for colleagues to take the Congolese out of the court room and transport them back to the detention facility near airport Schiphol.
The interpreter, who had been translating the Dutch proceedings into French, was still waiting with the Congolese men. Spread over the court room several guards were on duty. Until it was time to go.
The first to be led away was Dz’Na. When it was Ndjabu’s turn, he made a solemn bow to the judges. His example to be followed by Iribi. These were like scenes from a theatre play with the judges acting like the polite hosts, seeing off their guests. ‘A good evening,’ the policeman, who has been coordinating the departure of the Congolese, said to the judges, still seated overlooking what became an empty court room.
It would take the three judges about three weeks to come with a final decision in this long legal battle which led the Congolese witnesses before a series of Dutch courts. This journey started when Ndjabu, Iribi and Manda, who had been imprisoned without trial for many years in DRC, were flown as detainees to The Netherlands in 2011 to testify in defense for two suspects at trial at the ICC: Germain Katanga (found guilty this year) and Mathieu Ngudjolo Chui (acquitted in 2012). During their testimonies the witnesses accused the Congolese president Kabila himself of war crimes. They then feared reprisals and applied from their ICC-cells for asylum. The Dutch government turned them down because they – as militia leaders themselves – might have committed crimes as well. The Amsterdam district court confirmed the Dutch position to deny them protection, but warned that the three could not be returned because they would risk an unfair trial and even the death penalty.
On 27 June the Council of State came however to a very different conclusion. They decided there was actually no problem in returning the three Congolese men to the DRC. Because the ICC and the government of the DRC had agreed to a list of ‘protective measures.’ In fact the ICC-judges had already decided long ago these were sufficient guarantees. In their ruling of 24 August 2011 the ICC judges listed a whole list of safeguards: upon arrival in the DRC the three Congolese witnesses would be detained in a secure prison facility guarded by specially trained guards selected in consultation with the ICC, they would be regularly visited in prison by officials of the ICC’s Victims and Witnesses Unit (VWU) and judicial procedures against them would be monitored by the ICC. The DRC had given assurances the death penalty would not be executed.
The Council of State attached ‘great value’ to the protective measures and concluded it is ‘unlikely’ the Congolese men will be subjected to ‘abusive treatment, an unfair trial or the death penalty.’ The Dutch judges refered to the Rome Statute which says that cooperation between the ICC and DRC is based on ‘mutual trust.’ There are no ‘concrete signals’ that the DRC would not live up to its promises, the Council of State said.
International human rights organisations and the lawyers however had a complete different view. Amnesty International called, in a press release on 30 June, upon The Netherlands to not return the three ICC-witnesses as they would risk ‘the death penalty, ill-treatment and unfair trial.’ Referring to the same dangers Human Rights Watch spoke about ‘inadequate safeguards’ and warned the Dutch government ‘shouldn’t be complicit by sending them back.’
Flip Schüller, the Dutch lawyer of the Congolese men, wonders how the ICC will be able to prevent abuse. ‘If there are proceedings in the DRC against my clients, these will be before a military court. How will the ICC effectively monitor it if these proceedings take place in partbehind closed doors, due to national interests. How will the ICC react if my clients suddenly are the victim of a suspicious accident or are slowly deprived of adequate health care?’ And he added: ‘How can the ICC trust a president like Kabila who does not even respect cooperation obligations towards the court to such an extent that the ICC filed a complaint about the DRC at the UN Security Council? These questions warrant a substantive and convincing reply which is lacking.’
Schüller criticizes the fact that the Dutch courts did not investigate the ‘quality nor the enforceability of the protective measures.’
Schüller and his legal team are equally disappointed by the European Court for Human Rights. Two hours after the decision by the Dutch Council of State, the court in Strasbourg rejected their application to halt a possible deportation.
On Sunday 6th July the three were deported from The Netherlands to the DRC. Their return was handled by the Dutch authorities, said Schüller. There was no ICC-official to accompany them during the chartered flight, though an ICC-representative was supposed the be waiting for their arrival in DRC. Schüller commented on 8th July, two days after they were returned: ‘I don’t know where they are. Currently I have no contact with my clients.’
Schüller and his collegues ‘will hold the Netherlands and the ICC accountable for problems that may arise in the future,’ as they stated in a press release on the website of their law firm Prakken d’Oliveira. ‘Where necessary, we will seek international legal scrutiny of any irregularities and human rights violations that may occur. For this purpose we maintain close contact with local lawyers in the DRC and with our client’s ICC-appointed lawyer.’