This contribution starts with the story of three men, two countries, one international court, and a simple plan that did not work out. It describes how three detained Congolese witnesses who testified on behalf of the defence before the International Criminal Court (ICC) requested the Dutch government to grant them asylum briefly after their testimony. Everything suggests that the government of the Democratic Republic of Congo (DRC), the Netherlands, and the ICC had not anticipated this asylum request. I will briefly describe how this situation occurred, give an update of the latest state of affairs, and discuss the possible practical and political consequences and implications of the witnesses’ asylum applications.
Next, I will argue that the ICC and national governments will in the near future be confronted with more dilemmas stemming from a lack of harmonization between (the execution of) international criminal law and (upholding) principles of international protection. I will in this regard describe why and how also non-detained ICC defence witnesses might apply for asylum in the Netherlands and discuss the consequences this may have. It will be highlighted that the international community still has no answer to the question as to what to do with acquitted ICC defendants who cannot be refouled. As long as no concrete steps are taken to share the burden in this respect, the collective responsibility of the international community to protect these persons could de facto turn into an exclusively Dutch responsibility. Finally, it will be underscored that no solution yet exists on how to deal with individuals who are sentenced by international tribunals, but upon release cannot be refouled. Each and every sovereign country has legitimate reasons to not accept or invite foreign perpetrators of international crimes after they have served their sentence, but if all countries do so this results in a fundamental system error.
This article will not provide an in-depth legal analysis of the interrelation between criminal law, human rights law, and refugee law. Neither does it offer an exhaustive and fundamental discussion on the underlying procedures and principles. Instead, it identifies the problematic practical and political consequences of a limited number of (future) scenarios where (the execution) of international criminal law at the ICC may clash with (upholding) principles of international protection.
1. Congolese defence witnesses applying for asylum in the NetherlandsFootnote 1
1.1. The plan . . .
On 27 March 2011 three Congolese prisoners were transferred from Makala Prison in Congo and flown to the ICC Detention Centre in Scheveningen, the Netherlands. For several years prior to their transfer the men had already been detained, awaiting trial before a Congolese military tribunal. The purpose of their transfer was to testify in defence of the indicted alleged Congolese warlords Germain Katanga and Mathieu Ngudjolo Chui. In line with subparagraph 7(b) of Article 93 of the Rome Statute the witnesses were to remain in custody during the proceedings. And, as stated in that same article, when the purposes of the transfer had been fulfilled, the Court would return the witnesses ‘without delay to the requested State’. In other words, the witnesses would come to The Hague, stay for a limited period of time in the ICC detention centre, testify, and be sent back to Congo after giving their statements.
1.2. . . . and how it failed
In their testimony before the Trial Chamber of the ICC, the witnesses argued that the accused on trial should not be held accountable for committing the charged crimes. Instead, they implicated, amongst others, President Kabila of the DRC in the crimes against humanity committed in the Ituri District, a territory of the DRC. Shortly afterwards the witnesses submitted their applications for asylum to the Dutch authorities.Footnote 2 Given their statements they feared for their safety after their return to the DRC. This request for protection marked the beginning of a number of unprecedented legal procedures. The Katanga Trial Chamber recognized the principle of non-refoulement, the protection of refugees from being returned to a place in which their lives or freedoms could be threatened. Yet, as the Court itself has no territory, it urged the Dutch authorities to proceed in investigating the witnesses’ claims. In the meantime the witnesses were to remain in ICC custody.
What follows is a period in which the Dutch Immigration and Naturalization Service (IND) – the administrative authority responsible for asylum decisions – was in constant discussion with the counsel for the asylum seekers. While their counsel argued that the IND had initially vowed the witnesses could follow a regular asylum procedure, in the media a representative of IND denied such promise had ever been made.Footnote 3 Tensions ran especially high when the counsel for the applicants compared his clients’ situation with Guantánamo Bay, for the fact that they were detained without their criminal case being heard by an independent court.Footnote 4 In November 2011 the Dutch minister of immigration and asylum intended to bring clarity to the case. He argued that the witnesses during their stay in ICC custody were outside the jurisdiction of the Netherlands and that consequently Dutch asylum law was not applicable. Instead of a regular asylum procedure, the minister stated that the request for protection was dealt with as a sui generis procedure.Footnote 5 The details of this procedure are, however, uncertain.Footnote 6 In the meantime – six months after the initial request for protection – a formal reaction to the witnesses’ asylum request has not yet been given and the witnesses have continued to stay in the ICC detention facility.
The position of the applicants’ legal counsel was that there was no basis for deviating from the regular asylum procedure. They thus started various procedures to press the IND to make a substantive decision on the asylum applications. The Amsterdam District Court, competent in asylum matters, delivered a decision in which it ruled that the detained witnesses could apply for asylum in the Netherlands in December 2011.Footnote 7 It reasoned that although the witnesses fall under the jurisdiction of the ICC, this institution cannot offer protection since it does not have its own territory. It furthermore reasoned that the applicants actually resided on Dutch territory and that they were not in the position to apply for asylum elsewhere. The court ordered the government authorities to come to a decision on the asylum applications by 28 June 2012. This decision was not appealed. At the moment of writing – October 2012 – the Dutch asylum authorities have not yet made a determination.
1.3. Possible outcomes of the asylum application
Next will be argued that there are basically three likely outcomes of the asylum procedure: (i) asylum will be granted, (ii) asylum will be denied, or (iii) the application will not be taken into consideration because the applicants are excluded on the basis of Article 1f(a) Refugee Convention. It is not my intention to predict the most likely outcome since I do not have any inside knowledge and do not know all the details of the case. Instead, I would like to think through what the possible consequences of the three mentioned outcomes may be. It will be argued that basically any scenario unfolding from this Gordian knot leads to a situation that is likely to be perceived as highly undesirable by the Netherlands, the DRC, and the ICC.
1.3.1. An asylum permit is granted
The witnesses will be granted refugee status if they are able to demonstrate that they, upon return to the DRC, have a well-founded fear of being persecuted because of their race, religion, nationality, political opinion, or membership in a particular social group.Footnote 8 Apart from such a so-called ‘A-status’ the witnesses may also qualify for other (temporary) residence permits mentioned in Article 29 Aliens Act (Vreemdelingenwet).Footnote 9 Especially the B-status is relevant in this regard, which can be granted if applicants demonstrate that they have well-founded reasons to fear that they run a real risk, after repatriation to their country of origin or continuous residency, to be exposed to torture or inhuman or degrading treatment or punishment.Footnote 10 Receiving any of these statuses would obviously be a preferable outcome for the witnesses.
For all other actors involved, however, this outcome would be highly complicated and is likely to lead to substantial tensions. The Dutch government, for example, should in that case prepare for critical questions from Parliament. How could it happen that the government facilitated the transfer of Congolese militia members from a filthy Kinshasa prison cell to a subsidized and clean terraced house in, say, Gouda? Where did it go wrong? Who is responsible? While the Dutch traditionally have a rather internationalist perspective, these days matters are more than ever approached from the question of whether any Dutch interests are harmed. The fact that the Dutch government – somehow, details by that time did not really matter any more – allowed African asylum seekers to come to the Netherlands will not be well received. Given that the political context that government has for years already been trying to bring down the number of asylum applicants, and given that Dutch society as a whole has become ever more inward-looking, citizens ‘retreating behind their dykes’, such a decision might even incite a broader and more fundamental discussion on the pros and cons of having the ICC in the Netherlands.
The perspective of Congolese parliamentarians will not differ much. How could it happen that government facilitated the transfer of Congolese militia members from our filthy Kinshasa prison cell to a Dutch subsidized and clean terraced house in Gouda? Where did it go wrong? We had a clear agreement with the ICC that they would be sent back. What is the value of such an agreement? How trustworthy is this court? Indeed, in one of the submissions to the Trial Chamber in August 2011 the Congolese authorities already displayed their frustration with the delayed return of their previously incarcerated suspects who were awaiting trial before Congolese military tribunals.Footnote 11 Since then, Congolese officials have on various occasions expressed their discontent. A magistrate from the High Military Court, for example, referred to the asymmetrical relationship between the Court and Congo: the Court failed to respect the Congolese government's position, while the DRC has always been very co-operative in sharing information with the ICC. Also representatives of the Comité mixte de justice, a co-ordinating body for the Congolese judicial system and donor governments, indicated that the witness-asylum issue has strained relations between the Court and a historically supportive state party.Footnote 12 Indeed, if asylum is finally granted this might also start a more fundamental discussion about co-operation with the ICC in Congo, the country with most ICC cases pending.
Given the above, it is evident that this outcome would also be very discomforting for the ICC. It may lead to a loss of credibility and legitimacy which is already at a low point in many African states and may hamper and complicate the organization with respect to current and future possibilities in coming to arrangements concerning the transfer of witnesses or exchange of information.
1.3.2. No asylum permit is granted
In case the Dutch immigration authorities decide that the applicants have not sufficiently substantiated their asylum claim, this would not necessarily mean that the witnesses will immediately be sent back to Congo and that problems for the ICC, the Netherlands, and the DRC cease to exist. In light of the Amsterdam District Court ruling that the witnesses have access to the regular Dutch asylum procedure, the witnesses also have access to the national appeal procedure and possibly even the European Court of Human Rights (ECtHR). The applicants’ counsel will at this stage probably put forward that their clients can in the meantime not be transferred to Congo because they would risk being exposed to treatment contrary to Article 3 ECHR.Footnote 13 The whole process can take considerable time, probably years rather than months.
In this event, the counsel will in all likelihood address the question of the witnesses’ continuous detention. Not releasing them would lead to a violation of basic human rights. Release, on the other hand, could mean that the witnesses could go underground and move to other European countries. In the Netherlands, asylum seekers are not detained during their asylum procedure. They are issued a temporary residence permit and can move around freely. Although they are not allowed to cross any borders, this is in actual practice not very difficult because of the Schengen Agreement.Footnote 14 Should it in the end be concluded that the witnesses can indeed be deported, the question arises whether the Dutch authorities are still able to trace and apprehend them. They could by that time be anywhere in the Madrid/Brussels/Rome triangle. Also this outcome seems highly undesirable from the point of view of the ICC, the DRC, and the Netherlands.
1.3.3. Exclusion from refugee protection
On the basis of Article 1(f)(a) Refugee Convention no refugee status can be granted when there are ‘serious reasons for considering’ that the applicant has committed war crimes, crimes against humanity, or genocide.Footnote 15
Although UNHCR Guidelines suggest that the threshold to exclude is high and should always be interpreted in a restrictive manner,Footnote 16 in actual practice providing proof to establish ‘serious reasons for considering’ that someone has committed a crime is essentially relatively low.Footnote 17 The standard of proof is much lower than the ‘beyond reasonable doubt’ threshold that is required for a criminal conviction.Footnote 18 Exclusion can be based on an array of different sources, such as statements that the applicants themselves have made during their asylum procedure, witness statements, photographs, membership passes, convictions, indictments, arrest warrants, media and NGO reports, books, and/or embassy/state department reports. It is not exceptional that applicants in the Netherlands are excluded on the basis of their (high-level) position in a militia (information which is often presented by the applicants themselves during the procedure), coupled with publicly available reports which state that (the particular unit within) the organization the applicant has worked for was responsible for committing international crimes at the time the applicant worked for the organization.Footnote 19 This could, for example, be Human Rights Watch or Amnesty International reports which assert that torture and summary executions were widespread practice at the time.
The Dutch exclusion policy follows the Canadian ‘personal and knowing participation’ test, which means that decision-makers determine whether the asylum applicant knew or should have known that the crimes were being perpetrated and whether the applicant personally participated in any way in this crime. The mere presence of the applicant at the location of the alleged crimes is not sufficient. He/she needs to have contributed significantly to facilitate the execution of a criminal act and his/her actions must have had a direct effect. It must be plausible that the crime could not, or could not in the same manner, have taken place without the applicant's contribution.Footnote 20 Examples of individuals who have been excluded based on their personal and knowing participation are high-ranking state officials like governors or ministers who drafted policies, but also lower-level executors like police officers and drivers who handed over suspects to others, resulting in violence against the suspects; people providing intelligence that possibly resulted in the harm of others; or people with support functions such as a bodyguards or prison guards.Footnote 21
Two things are important to note in relation to the exclusion policy in the Netherlands. First, in contradiction to UNHCR guidelines and practice in most countries, Dutch authorities decide on ‘exclusion before inclusion’.Footnote 22 This means that the Netherlands assess possible exclusion grounds prior to the applicants’ alleged fear of persecution, while other countries do it the other way around. When in a certain case no (justified) fear of persecution can be established, the asylum claim of an excludable person would in other countries be rejected, while that very same person would in the Netherlands be excluded. This policy thus leads to a relatively high number of exclusions. A second observation in relation to Dutch exclusion policy is that it has over the past years proven to be relatively strict and often applied.Footnote 23 In the context of the ‘no-safe-haven policy’ an experienced and specialized 1(f) unit within the IND is tasked to assess possible exclusion cases, while specialist units within the prosecution and police services assess if prosecution of those excluded is viable.Footnote 24 From 1998 to 2007 the Netherlands has excluded more than 700 asylum seekers – approximately 0.3% of the total asylum population in that time frame – while, for example, Belgium from 2004 to 2009 excluded 106 asylum applicants (0.1%).Footnote 25
Based on their curricula vitae it is not unthinkable that some of the Congolese witnesses would qualify for exclusion. Some held high-level positions in militias in Congo. One of them, for example, acted as president of the Front des nationalistes et intégrationnistes (FNI). This militia is, according to Human Rights Watch (HRW), responsible for numerous rapes,Footnote 26 the killing of hundreds of civilians,Footnote 27 and the killing and abducting of Nepalese UN blue helmets.Footnote 28 One of the HRW reports states that he ‘seemed unconcerned about the illegality of summary executions, saying “Congolese law does not apply here. This is the Republic of Ituri.”’Footnote 29 Another witness is said to be a former secret agent of the Congolese government and founding member of the FNI,Footnote 30 while the Security Council states the third witness was the commander of the Front populaire pour la justice au Congo (FPJC), another militia associated with serious human rights violations in the Ituri region.Footnote 31
Should the Dutch immigration authorities assess that there are ‘serious reasons for considering’ that any of the witnesses personally and knowingly participated in war crimes or crimes against humanity, the applicants can be excluded from refugee protection. If the IND did – for practical reasons – decide not to exclude them the Netherlands would violate the fundamental principle of the Refugee Convention that such persons are ‘undeserving’ of receiving refugee protection.Footnote 32 Exclusion is, however, a far from preferable scenario from the perspective of the Netherlands, the DRC, and the ICC. It would first of all and quite likely lead to appeal procedures. Should – in the end – the exclusion decision in appeals be confirmed, it would mean that the witnesses are not granted legal status to stay in the Netherlands. At the same time it might be decided that they cannot be deported because they risk facing ill-treatment. At that moment they are in a ‘legal limbo’. They are ordered to leave the Netherlands, but at the same time the Dutch government is not allowed to deport them. The witnesses would in that case join a group of some dozens other excluded ‘alleged’ Afghan war criminals and Rwandan génocidaires living in a similar situation in the Netherlands. They are undocumented, are declared ‘undesirable aliens’, are not allowed to work, have no access to insurance, and are dependent on their social network or the informal labour market to subsist.Footnote 33 Yet the difference is that all these Afghans and Rwandans spontaneously and often illegally managed to enter the Netherlands, whereas the Congolese were knowingly and with permission of the Dutch authorities transported into the country. That, I guess, would provide grist for the mill for the parliamentary opposition: ‘how could the Dutch government facilitate the transfer of alleged Congolese war criminals to the informal underground circuit in the Netherlands?’ Questions might be asked if they pose a danger to society, while NGOs like HRW or Redress will push for prosecution on the basis of universal jurisdiction.Footnote 34 Such prosecution is, however, due to many difficulties relating to evidentiary issues, translation, etc. incredibly costly and time-consuming.
Obviously the Netherlands could request other countries to ‘share the burden’ and ask if they are willing to relocate the witnesses. But which country will invite and harbour them? Prosecutors of both the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) have in the past already expressed how difficult it is to relocate threatened and anonymous allegedly implicated insider witnesses.Footnote 35 These unknown individuals assisted in providing crucial evidence for convicting génocidaires and war criminals. It will be even more difficult to find a country opening its doors to – by now – well-known former rebels who testified on behalf of alleged murderers and are themselves associated with serious human rights violations. An illustration of the reluctance of the international community to relocate persons associated with international crimes is the case of the acquitted ICTR defendant André Ntagerura.Footnote 36 Rwanda's former minister of transport was acquitted in 2004 by the ICTR Trial Chamber. The acquittal was confirmed on appeal in 2006. Ever since, he has been living in a safe house in Tanzania at the ICTR's expense. Due to security issues he cannot be refouled to Rwanda, but no other country wants to host him. In an email exchange I had with him he writes, ‘I believe that I can find a place where I can live legally and safely. It is one of my fundamental rights. The international community which . . . provided the mandate to arrest me, detain me and prosecute me also has the responsibility to solve my case.’Footnote 37 In July 2012 the UN Security Council has again in vain requested states’ assistance in relocating him.Footnote 38
If this scenario unfolds, the DRC might ‘lose’ its suspects to the Netherlands, the Netherlands might want to ‘lose’ them but cannot, while the ICC is blamed for making all of this happen. It would be a scenario in which all actors need their best communication advisers to spin the possible consequences into a script that is digestible and acceptable to the general audience.
1.3.4. Current state of affairs
On 12 September 2012 the applicants’ counsel, by means of summary proceedings, demanded that the Dutch state be compelled to declare itself willing to transfer the witnesses from the ICC detention centre into Dutch territory. It was argued that the Netherlands was depriving the men of the possibility of requesting a judge to assess their detention in full and that the Dutch state therefore acted in violation of Articles 5 and 13 of the European Convention on Human Rights. This, coupled with the fact that the Trial Chamber already in July 2011 had warned that the processing of their applications may ‘in no way cause any unreasonable delay to their detention’,Footnote 39 made the District Court of The Hague on 26 September 2012 rule that the custody of the witnesses should indeed be transferred from the ICC to Dutch authorities.Footnote 40 The Dutch authorities were ordered to contact the ICC and enter into deliberations on how to end the unlawful detention of the plaintiffs. At the moment of writing it is unclear if the witnesses will upon release (remain to) be detained or not.
Particularly interesting in the context of this article, is that the summary proceedings also shed some light on the possible outcome of the asylum procedure. During the court session the state advocate informed the judge that the Dutch authorities by June 2012 had expressed a letter of intention to exclude at least two of the applicants on the basis of Article 1(f) because there were serious reasons for considering they had committed crimes against humanity. The applicants submitted their views on this intended decision by July 2012. At the moment of writing a final decision has not yet been delivered.Footnote 41
2. More dilemmas to come?
The dilemmas sketched above depict the practical and political problems that result from a lack of harmonization between (the execution of) international criminal law and (upholding) principles of international protection deriving from international refugee and human rights law. Although these strands of law have over the past decades become ever more interconnected, a hierarchical relationship does not exist. A recent Expert Meeting by the UN High Commission for Refugees (UNHCR) and the International Criminal Tribunal for Rwanda (ICTR) concluded that harmonization between the different regimes ‘is not an objective in and of itself’. ‘The overriding concern’, it continued, ‘should be clarity on the ordinary meaning of the provision at hand guided by the object and purpose of each regime or instrument, or the particular norm in question’.Footnote 42 Yet the situation of the Congolese witnesses shows that establishing the meaning and purpose of each and every legal regime in itself may not necessarily be problematic, but that applying these at the same time is; especially when the various actors involved have at times diametrically opposing interests.
This leads one to wonder whether we are looking at a highly exceptional incident, or whether we are to see more ‘Gordian knots’ where the application of international criminal law clashes with principles of refugee and human rights law in the future. My impression is that it will not end here. Below, three more (possible) quandaries stemming from a lack of harmonization between the various regimes will be highlighted.
2.1. What to do with other defence witnesses applying for asylum?
Briefly after the three witnesses discussed in this article applied for asylum, another detained Congolese defence witness in the Lubanga case did the same.Footnote 43 I agree with Sluiter that it is not very likely many more will follow, since detained witnesses testifying at the ICC will continue to be quite unique.Footnote 44 At the same time, it should be acknowledged that the current applications may set a precedent for the few that might follow, especially if the procedures lead to – from the perspective of the applicants – positive outcomes. Moreover, we should bear in mind that non-detained defence witnesses can apply for asylum as well. The Dutch government, already in 2001, confirmed that its asylum procedure is open to these individuals.Footnote 45 If this happens, the situation will generally be very different, especially because it is unlikely that there are any agreements on return between host countries and the ICC.
The fact that this has not yet occurred while the Netherlands has for almost 20 years been hosting the International Criminal Tribunal for the former Yugoslavia (ICTY) does not mean it will never take place in the future.Footnote 46 The context of the former Yugoslavia at the time of the trials differed considerably from the contexts relating to cases dealt with at the ICC. Although non-detained ICTY defence witnesses have in the past sporadically requested relocation because they feared persecution,Footnote 47 most Bosnian, Croat, Kosovar, or Serb defence witnesses could, after testifying, directly return to any of the newly established republics. If a Serb witness, for example, in the late 1990s testified on behalf of an accused former Serb colonel or politician, he had few incentives to request protection in the Netherlands. The nationalist Serbian government happily welcomed him back. The same would generally go for defence witnesses from the other regions.
The context the ICC works in is often very different from the ICTY and the relationship of the latter with the former Yugoslavia. Similar to the ICTR, the ICC deals with a number of cases in which the former (military) opponent of the defendant holds power in the witnesses’ country of origin at the time of a trial. This is the case in Congo, but also in countries like Ivory Coast, Libya, the Central African Republic, or Kenya. Consequently, persons who belonged to the inner circle of the defendant – those who are typically called as defence witnesses – often live under cover in the country of origin or have fled to a neighbouring country. They subsist under an alias in their great-grand aunt's quarters in a far outpost of Ivory Coast or reside as an undocumented migrant somewhere in Mali. And they are looking for a way out. Relocation in the ICC Protection Program (ICCPP) could then theoretically offer the possibility to escape such situations. In order to qualify for this, they would need the assistance of the defence team to call them as a witness. Prior to testifying, the Victims and Witnesses Unit (VWU) of the Registry should be requested to arrange for relocation.Footnote 48 Even if all of this succeeds, actual relocation is far from guaranteed. According to the ICTR the need to order protective measures can, for example, not be made purely on the subjective fear expressed by the witness. Rather, it should be established that an objective situation exists whereby the security of the witness is or may be at stake.Footnote 49 And protective measures outside the court are only provided to a limited extent. Relocation of witnesses as defined in Rule 16(4) of the ICC Rules of Procedure and Evidence (RPE) is generally regarded to be a measure of ‘last resort’, because it requires extensive support from the ICC and – difficult to obtain – assistance by third states.Footnote 50 Requests for relocation are certainly not automatically granted.
The current asylum proceedings, however, signal that there is also a shortcut to possible relocation in a European country. The former comrade of an ICC accused could reason that he can – like the Congolese witnesses – apply for asylum after testifying, instead of filing a request for relocation at the VWU prior to testifying. There seems to be little that the ICC or the Netherlands can do to prevent this. If the defence team wishes to call a relevant witness – no matter if he is an undocumented migrant who barely gets by in a forgotten place of the world – it is hard to conceive that merely the threat of an asylum application in the Netherlands could be invoked as a reason not to issue a travel document, especially because the Netherlands has unequivocally stated that defence witnesses are allowed to apply for asylum. Denying a defence witness to give acte de présence in the courtroom in The Hague would furthermore directly play into the hands of the defence team, which could argue that the defendant does not have a fair trial.
Is all of this a purely hypothetical and theoretical line of thinking? It might prove to be. But, perhaps one would have said the same if someone had presented a hypothetical scenario of detained ICC witnesses applying for asylum in the Netherlands two years ago. And what's more, politics – and often policy – is all about perceptions. Actual numbers do not necessarily matter. Even at this moment, with only four witnesses who applied for asylum, the perceived threat that more might follow is likely to already have a profound impact on co-operation practices. Sending countries, the ICC registry, and the Dutch government will think twice before new arrangements are made to transfer witnesses on request of the defence to The Hague; in particular, when they are detained, live under cover in the country of origin, or reside undocumented or with a refugee status in one of the neighbouring countries, and above all if they are possibly implicated war criminals themselves. New dilemmas might arise. The VWU should, for example, consider how to deal with defence witnesses who might use the threat of applying for asylum in the Netherlands as leverage to be relocated in the ICC Protection Program – a far from pretty perspective for a budget-tight ICC. There are no easy solutions, but the ICC and the Netherlands need to thoroughly think through how new asylum claims could be prevented. Or, as Sluiter suggests, better not worry too much and simply accept possible new claims as ‘the price to pay’ for hosting the centre of international criminal justice.Footnote 51
2.2. What to do with the acquitted?
As discussed above, the international community even six years since the 2006 acquittal of André Ntagerura has still not come up with a solution where to relocate him. After a protracted process involving bilateral negotiations and court proceedings, the ICTR Registrar has over the past years managed to relocate at least five other acquitted defendants. They are reunited with family members and live as free men in Western European countries.Footnote 52 Ntagerura, however, is restricted in his movements; cannot visit his family members, who live in Europe; and still lives in a safe house in Tanzania. But he is not alone. Four other acquitted defendants without a country willing to accept them have in the meantime joined him.Footnote 53 Since procedures on how to deal with the issue do not exist, the acquitted, the Registrar (who is responsible for them) and Tanzania (which hosts them) depend on the benevolence of individual states. And states are not known for basing their policy on compassion.
The case of Protais Zigiranyirazo, businessman and brother-in-law of former president Juvénal Habyarimana, illustrates states’ reluctance in this regard. After his asylum application in 2001, the Belgian authorities arrested and transferred him to the ICTR,Footnote 54 where the Appeals Chamber acquitted him in 2009 because of lack of evidence.Footnote 55 Since his acquittal ‘Mr Z’, as he is often referred to, has continuously requested Belgium to allow him back into the country.Footnote 56 Though an indictment by an international criminal court is generally considered to be a basis for exclusion from refugee protection, it is also generally agreed upon that an acquittal on substantive (rather than procedural) grounds means that the indictment can no longer be relied upon to exclude someone.Footnote 57 Since the 2001 asylum determination process was suspended pending the outcome of the ICTR proceedings, Belgium should in principle resume the asylum procedure following the acquittal.Footnote 58 Up to this moment, however, Belgium does not seem eager to do so. Mr Z and the other acquitted recently had another disillusionment when the ICTR president dismissed a request to install a special chamber to hear their grievances concerning their relocation.Footnote 59 Their waiting continues.
In 2007 Kevin Heller already warned that ‘there is no reason to believe that states’ reluctance to grant asylum to defendants acquitted by the ICTR will not extend to defendants acquitted by the ICC’.Footnote 60 Four years down the line the conclusions from the UNHCR's Expert Meeting on the issue do not differ much.Footnote 61 So far, however, the ICC and the Netherlands have been spared any problems. No acquittals have occurred and the four cases which have been rejected by the pre-trial chambers at the stage of the confirmation hearing – situations which might, similarly to acquittals, lead to difficulties in relocating defendants – have not led to any problems either. The 2010 rejectionFootnote 62 of the case against former commander of the Darfuri rebel group the Justice and Equality Movement (JEM), Bahar Idriss Abu Garda, did not result in a request for protection. He presented himself voluntarily in The Hague and after the acquittal returned to Sudan, where he was recently appointed minister of health in the national government led by his former foe President Omar Al-Bashir.Footnote 63 The rejections of the cases against the Kenyan Member of Parliament Henry Kiprono Kosgey and former Kenyan police commissioner Mohammed Hussein AliFootnote 64 also led to no problems. They too were never detained in the Netherlands, did not request protection, and voluntarily returned to Kenya. Kosgey still is a parliamentarian, while Ali has been working as executive of the Postal Corporation of Kenya since 2009.Footnote 65 Finally, the pre-trial rejection of the case against alleged Rwandan rebel leader Callixte Mbarushimana has not led to difficulties. Though he was detained in the Netherlands he could, and wished to, return to France, the country which had already granted him asylum in 2003 after an acquittal by the ICTR.Footnote 66
If accused like Katanga and Ngudjolo Chui are acquitted, things might look different, though. Their acquittal would more likely lead to a situation André Ntagerura and his co-residents in Arusha's safe house see themselves confronted with. Especially Ngudjolo, whose defence team in the closing arguments before Trial Chamber II contended that DRC's President Kabila himself planned an attack on Bogoro, might after a possible acquittal make a good case not to be refouled. At the same time he might not stand the best chance of being relocated and/or granted refugee status in any country. When the international community has already, for six years, frustrated the relocation of a former Rwandan minister of transport, there are few reasons to suppose countries will be keener in opening their borders to a former Congolese rebel leader.
To complicate matters even further, a conviction of Ngudjolo would also not necessarily carry off any relocation predicaments. Depending on the situation, relocation issues might merely be postponed. In order to understand this, we can, for example, look into the possible future perspective of Thomas Lubanga.
2.3. What to do with the sentenced?
The ICC in its first verdict found Thomas Lubanga guilty of recruiting and using child soldiers and convicted him to 14 years’ imprisonment.Footnote 67 The ICC signed agreements on the enforcement of sentences with Austria, Belgium, Colombia, Denmark, Finland, Mali, Serbia, and the United Kingdom.Footnote 68 It is not yet known in which of these countries Lubanga will, if he is not acquitted in a possible appeal, serve his sentence. Whichever it is, its government will sometime between 2015 and 2020Footnote 69 be confronted with the question what to do with the – by then – about fifty-year-old ex-rebel leader after his release.
If Congo has at that moment turned into a pleasant and safe country, Lubanga is likely to return. If Congo has not – or if Lubanga perceives it not to be – he might apply for asylum. In that case the host country is confronted with the question how to interpret paragraph 73 of the 2003 UNHCR Background Note on the Article 1(f) exclusion clause:
Bearing in mind the object and purpose behind Article 1F, it is arguable that an individual who has served a sentence should, in general, no longer be subject to the exclusion clause as he or she is not a fugitive from justice. Each case will require individual consideration, however, bearing in mind issues such as the passage of time since the commission of the offence, the seriousness of the offence, the age at which the crime was committed, the conduct of the individual since then, and whether the individual has expressed regret or renounced criminal activities. In the case of truly heinous crimes, it may be considered that such persons are still undeserving of international refugee protection and the exclusion clauses should still apply [emphases added].Footnote 70
What exactly ‘truly heinous crimes’ are is not elaborated on. But one could presume that ‘the most responsible perpetrators of the most serious crimes’ convicted by the ICC would certainly qualify as such.Footnote 71 Indeed, even having served a sentence, someone like Lubanga could still be excluded from refugee protection if he applies for asylum.Footnote 72 Since the decision to exclude someone is an administrative ruling and not a criminal conviction, this does not conflict with the ne bis in idem (or double jeopardy) principle that the same legal action cannot be instituted twice for the same cause of action.
The Swedish authorities currently possibly struggle with the very question of what to do with the asylum application of an already sentenced perpetrator of truly heinous crimes. When Rwandan génocidaire and former Tea Authority boss Michel Bagaragaza was set free from a Swedish prison in December 2011, he requested the right to stay.Footnote 73 He is still in Sweden while the Swedish authorities are examining his application. A representative of the ICTR Registry believes it is unlikely Sweden is to expel Bagaragaza ‘since it had agreed to take him into one of its prisons’.Footnote 74 Bagaragaza is not the only individual who, having served an ICTR-ruled sentence, is in search of protection and a place to legally reside. There are at least two other released Rwandans caught in limbo. Former colonel Anatole Nsengiyumva's 15-year sentence was more than his time served in ICTR detention. Because no country is willing to relocate him, he has joined André Ntagerura in the Tanzanian safe house.Footnote 75 After being granted early release in March 2012 former army lieutenant colonel Muvunyi for the same reason recently also arrived at the safe house.Footnote 76 Except for the first ICTR prisoner to have served his sentence, Pastor Ntakirutimana, who in 2007 died of natural causes less than a month after release,Footnote 77 it is largely unknown to what extent other released Rwandan génocidaires have encountered problems of this sort.Footnote 78
Released ICTY convicts have not faced many problems in this regard because they can relatively safely return to the different republics with different ethnic make-ups in the former Yugoslavia. On a domestic level, however, one can also find illustrations of the discouraging situation of sentenced perpetrators of international crimes who cannot be refouled. The Rotterdam District Court in 2004, for example, sentenced the Congolese ex-colonel Sebastian N. – the Roi des Bêtes (King of the Beasts) – to two and a half years’ imprisonment on charges of torturing detainees in a Congolese camp.Footnote 79 In 2006 briefly after his release he was arrested because he had remained in the Netherlands while he was declared an undesirable alien and hence subject to an exclusion order (ongewenstverklaring).Footnote 80 His counsel invoked a force majeure appeal that it would not be reasonable to expect his client to leave the Netherlands, because it was at the same time accepted that he could not be deported to Congo and that no other country was willing to relocate him.Footnote 81 The Court of Appeal did not accept this argumentation and the case went to the Supreme Court (Hoge Raad).Footnote 82 During all these procedures, which took more than three years, the ex-colonel must have illegally roamed in the Schengen territory. Except for the Netherlands he apparently also visited Belgium, since the advisory opinion of the Attorney General contains the following remarkable account: ‘During the procedure . . . a surprising twist occurred, namely, that the Ministry of Justice informed me that investigations have led to the conclusion that the claimant in January 2008 received a valid Belgium residence permit.’Footnote 83 The opinion does not provide any specifics regarding the basis on which the permit was granted.Footnote 84 In this case Belgium for some reason helped out the relatively unknown Roi des Bêtes – and the Netherlands – by providing him a residence permit. It is to be expected that more (in)famous individuals in similar situations face more difficulties.
The above demonstrates that countries which prosecute perpetrators of international crimes on the basis of universal jurisdiction,Footnote 85 as well as countries which enforce the sentences of ICC convicts, may in the future be confronted with the fact that they cannot relocate criminals who have already served their sentence. Even the most recent agreements on the enforcement of ICC sentences do not offer any solutions in this regard.Footnote 86 This again serves as an illustration of how a lack of harmonization between (the execution of) international criminal law and principles of international protection leads to practical and political challenges. One of the aims of sentencing is rehabilitation. But when all countries refuse already sentenced perpetrators who are threatened in their country of origin to find a place to legally reside and build up a normal life, such rehabilitation can de facto not take place. Each and every sovereign country has legitimate reasons not to accept or invite foreign perpetrators of international crimes who have served their sentence, but if all countries do so this results in a fundamental system error. As it stands international law and politics do not yet have an answer to this.
3. Concluding observations
This article identified a number of practical and political challenges that (might) stem from a lack of harmonization between the relatively new (procedures of) international criminal law and well-established principles of international protection. It discussed the three most likely outcomes of the asylum procedures of three Congolese defence witnesses in the Netherlands and reasoned that basically all are problematic from the perspective of all involved parties. It argued that there is a limited, but real, chance that future defence witnesses will apply for asylum in the Netherlands, and that this threat alone might already seriously hamper co-operation practices between the ICC and states parties. It concluded with the notion that the international community has still not come up with a coherent scheme on how to deal with acquitted and sentenced ICC defendants who cannot be refouled to their country of origin.
In particular the position of the host country of the ICC, the Netherlands, is interesting. On the one hand, the Dutch government wants to be a good host to the ICC and facilitate the course of international criminal justice where possible. On the other hand, it has to take into account principles of protection in refugee and human rights law, national interests, diplomatic relations, and – not to be overlooked – national political sentiments. This article illustrated scenarios where many of these interests clash. As long as no concrete steps are taken to share the burden, the collective responsibility of the international community to host ICC witnesses and acquitted defendants in need of protection could de facto turn into an exclusively Dutch responsibility. Tanzania currently experiences what it means if no other countries are willing to share the burden of hosting acquitted defendants. It now hosts an ICTR-financed safe house for such persons in Arusha. With this perspective in mind the Dutch government could together with the ICC already reflect on the idea of where to locate a future safe house in Scheveningen.
Dutch diplomacy could in the meantime consider what leverage it has to entice or incite other countries to relocate future threatened witnesses and defendants, while countries that agreed to enforce ICC sentences could do the same for their inmates who upon release cannot be deported. It might in that respect be fruitful to inquire into the way in which the Obama administration managed to resettle its ‘first-they-were-and-now-they-are-not-any-more-terrorists’ from Guantánamo Bay. No quid pro quo has become public, but the tropical island of Bermuda has in 2009, for example, happily received four Uighur ex-Guantánamo inmates.Footnote 87 With some wheeling and dealing Dutch or Danish authorities might in the future succeed in relocating their acquitted or sentenced Congolese commanders to the Caribbean.
