8 October 2012
From Shared Obligations to Individual Obligations: The Hague District Court and Asylum at the ICC
On 27 September 2012, the District Court of The Hague handed down this important decision in an ongoing situation regarding three detained witnesses of the International Criminal Court (ICC) who have sought asylum in the Netherlands. The decision raises a number of fundamental issues concerning the relationship between ICC jurisdiction as opposed to the Netherlands jurisdiction, as well as important human rights issues.
The defence team in Prosecutor v Katanga sought the transfer of three detained witnesses being held in the Democratic Republic of Congo (DRC). Prior to being brought to the ICC, the three witnesses had been detained in the DRC on suspicion of killing United Nations peacekeepers. The transfer to the ICC was effected pursuant to Article 93(7) of the Rome Statute, which sets out the transfer procedure to be followed for detained witnesses, and involves and obligation on the ICC to return the witnesses to the DRC as soon as their testimony is complete.
Following their testimony before the ICC, the witnesses presented an asylum application to the Dutch immigration authorities on 12 May 2011. They claimed that because their testimony to the ICC implicated the incumbent DRC President, Joseph Kabila, on return to the DRC they would be subjected to persecution, inhumane or degrading treatment, and their fair trial rights would be violated. From the perspective of the SHARES project, this application raises interesting questions. Both the ICC and the Netherlands have human rights obligations towards the individual witnesses, which may include a prohibition on refoulement. However do these obligations have the same content? Does one prevail over the other, and if so how and why? The decision of the Hague District Court unfortunately answers few of these legal questions.
As far as the ICC is concerned, Trial Chamber II held in a decision of 24 August 2011 that assurances provided to it by the DRC, guaranteeing that certain protective measures would be put in place, enabled the witnesses to be safely returned. However, in a previous decision of the 9 June 2011, the Court held that it would not order the return of the witnesses while the asylum applications were pending, as this would compel the Netherlands to act contrary to its obligation to process an application for protection from refoulement. The ICC has sought to consult with the Netherlands in order to transfer the witnesses to the Dutch authorities, but to date these consultations have failed to yield result. The Netherlands maintains that it lacks jurisdiction to take the witnesses because they were transferred to the Dutch territory pursuant to an agreement between the ICC and the DRC.
The witnesses remain therefore, more than one year later, in detention at the ICC’s facility, raising the issue of their right to liberty. Under the Headquarters Agreement the ICC cannot release the witnesses into the Netherlands without the latter’s consent, but the Netherlands claimed it was not within their jurisdiction to take them. This situation of shared responsibility has therefore left the witnesses in a legal limbo.
This legal limbo may now be resolved, at least for practical purposes. On 12 September 2012 a hearing took place before The Hague District Court in which lawyers for the witnesses claimed the ongoing detention violated their right to liberty under Article 5 European Convention on Human Rights. Just over two weeks later a summary judgement was issued by the Hague District Court, which has brought the witnesses closer to being released.
In this decision, handed down on 27 September 2012, the District Court of The Hague ruled that the continued detention of the witnesses was unlawful. This followed from the fact that there was no prospect of release or trial within a reasonable period of time. The Court recognised that asylum applications might interfere with the system envisaged by international law (presumably the obligation on the ICC to return witnesses transferred pursuant to Article 93(7) Rome Statute), but stated that the state was simply bound to examine the request (para 3.7 of decision).
The Dutch Court rejected the Netherlands’ argument as to jurisdiction. It held that irrespective of whether the witnesses are under the jurisdiction of the Netherlands, they cannot be left in a detention situation which has no end in sight. The State was ordered to consult with the ICC and take over the witnesses within a period of four weeks. The Dutch Court stressed the importance of the asylum proceedings, given that the witnesses have access to no other remedy. In this way the Court distinguishes the European Court of Human Rights case of Galic (para 3.6). In that case it was held that human rights violations which might have occurred at the ICTY were not attributable to the Netherlands merely because the ICTY was on Dutch territory. The important distinction is that Galic had access to the procedural safeguards of the ICTY, whereas the witnesses in the current situation do not (para 3.5 and 3.7 of decision). The same distinguishing factor was present in another The Hague District Court decision in Milosevic v The Netherlands, in which the court ruled that matters relating to detention at the ICTY had been transferred to the ICTY and the Netherlands retained no jurisdiction over it.
The Dutch Court appears to be ruling that human rights concerns, in particular the right to a remedy, take precedence over the particularities set out in the Headquarters Agreement dealing with the distribution of jurisdiction between the ICC and the Netherlands. While this is surely a desirable result in many ways, one might wonder what the legal basis is for finding a hierarchy in international law, when such norms of hierarchy are extremely limited (namely, limited to jus cogens norms).
The Dutch Court was barred from reviewing the ICC’s assessment on whether it is safe to return the witnesses by, among others, Article 5 of the Headquarters Agreement. As a result, the Hague District Court has resorted to transforming what was a shared obligations situation, to an individual obligations case in which the Netherlands must perform its human rights obligations as if the ICC had no role. This approach is clear from the Dutch Court’s concern that no other remedy was available to the witnesses. A Dutch Court can, after all, only command the Dutch government. It is concerning however, that the lack of an international mechanism to mediate the issue has led to a single entity approach in a situation which is inherently one of shared obligations and responsibilities.