28 October 2013

The Legal Limbo Continues: Update on the Detained Witnesses at the ICC

ICC, © http://www.denhaag.nl/

ICC, © http://www.denhaag.nl/

In October 2012 and January of this year the SHARES blog posted about the situation of Congolese witnesses detained at the International Criminal Court (ICC) in The Hague. Their detention continues, and while the resolution of their legal status is one step closer, it is also as illusive as ever, due to a decision of the Amsterdam District Court.

A detailed background to the situation can be found here, but can be briefly summarised as follows. Four individuals, detained in the Democratic Republic of the Congo (DRC) on charges relating to the on going armed conflict in the country, were transferred to the ICC detention unit in May 2011 in order to give evidence as witnesses. When the witnesses concluded their testimony, they applied for asylum in the Netherlands. Since that time they have remained detained and now find themselves in a legal limbo with neither the ICC nor the Netherlands willing to assume responsibility for their fate.

On 14 October 2013, the Amsterdam District Court ruled on an appeal against a decision to not grant refugee status to the witnesses. The Court held that the Secretary of State of the Department of Security and Justice did not err when he excluded the witnesses from the protection of the Refugee Convention. This was done on the basis on Article 1F, which states that persons suspected of involvement in crimes against humanity are not protected as refugees. The reason for their detention in the DRC prior to coming to the Netherlands was indeed the suspicion that they were implicated in the killing of UN peacekeepers (although they were never formally charged).

Despite not gaining the refugee status they sought, the Amsterdam District Court did provide some protection for the witnesses. In effect, it gave them the benefit of the complementary protection afforded by the European Convention on Human Rights (ECHR).

The Court found that if the witnesses were returned to the DRC, this would constitute a violation of Article 6 ECHR. They began by quoting the Othman case:

“It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.”[1]

And go on to quote the following passage from Al-Moayad:

“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release.”[2]

The District Court found that the detention of the witnesses in the DRC had been unlawful since 2007, because the basis for their detention was never renewed by the domestic courts. This, combined with the fact that they had never been formally charged with an offence, rendered the situation in the DRC a flagrant denial of justice. As such, their return to the DRC would be contrary to Article 6, and it is on this ground that the decision of the Secretary of State to return the witnesses was overturned.

It is interesting that the Court bases its decision on Article 6 of the ECHR. As reported previously on this blog, the European Court of Human Rights held in the Longa[3] case that the matter of the witnesses’ on going detention was outside the jurisdiction of the ECHR under Article 1, due to the fact that they are on ICC premises. The Amsterdam District Court, in the decision of 14 October, dealt with this by confining Longa’s applicability to claims brought under Article 5 ECHR. The rationale for this is grounded in the ‘equivalent protection’ doctrine[4] – as far as detention is concerned, the ICC is able to offer protection equivalent to that otherwise owed by the Netherlands under the ECHR. The same however cannot be said of the DRC; the ‘equivalent protection’ doctrine deals with international organisations, not states. It was found that the guarantees offered by the DRC as to the fair trial of the individuals were insufficient.

From the perspective of sharing responsibility for the human rights of the witnesses, the Amsterdam District Court appears to be saying that where the reach of the ICC ends, the role of the Netherlands must begin. In this way, there is no gap in the protection of the witnesses. The Netherlands is not free to claim that the witnesses are solely within the jurisdiction of the ICC, as the Longa case seemed to suggest. Rather, where the ICC involvement ends, so does the presumption of equivalent protection. At this point the obligations of the Netherlands are engaged under the ECHR.

It would have been interesting had the Amsterdam District Court addressed the possibility that time spent detained in the Netherlands may somehow have contributed to a violation of Article 6 ECHR, despite this not being raised by the parties. Instead the Court examines the issue entirely as a non-refoulement matter. There is no consideration of the prospect that the period of more than two years in the Netherlands was an element of the Article 6 violation. The quote from Al-Moayad used by the Court to define a flagrant denial of justice suggests that detention without access to review of that detention could be a violation of Article 6. The Court could not deal with the detention of the witnesses under Article 5 because of the Longa case, but it could have made the argument that the accumulation of periods of six years in the DRC and two years in the Netherlands was also an element of the flagrant denial of justice. This perhaps would have been a more accurate reflection of how multiple entities involved in the witnesses’ situation are responsible for the violation of Article 6.

The Amsterdam District Court may have protected the witnesses from an unfair trial in the DRC, but allowing them to remain in the Netherlands does not resolve the issue of their legal status. Now it is presumed, they will join the many others who find themselves on European territory protected by the ECHR, but excluded from refugee status. What remains to be seen is whether they will now be released from detention. The legal limbo continues on.


[1] Case of Othman (Abu Qatada) v. the United Kingdom, Application no. 8139/09, Judgment, 17 January 2012, para. 258.

[2] Mohammed Ali Hassan Al-Moayad v. Germany, Application no. 35865/03, Decision on Admissibility, 20 February 2007, para. 101.

[3] Bède Djokaba Lambi Longa v. the Netherlands, Application no. 33917/12, Decision on Admissibility, 9 October 2012.

[4] As developed initially in the Bosphorus line of cases (Case of Bosphorus v. Ireland, Application no. 45036/98, Judgment, 30 June 2005).

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