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

 Posted by: Irving Emma

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.

 

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[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).

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

Posted by:

Irving Emma

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).

LGBT Rights in Uganda: a case study of Shared Responsibility?

 Posted by: Jacobs Dov

Discrimination against homosexuals and lack of recognition of LGBT rights in Africa has been a pressing concern for a number of human rights organizations in recent years. The situation in Uganda has received particular attention, following the passage of anti-gay legislation in 2009 and the practice of some local newspapers to “out” certain homosexuals, accompanied by calls for their execution. While this is an obvious human rights issue, some recent initiatives are bringing the question in the realm of international criminal law, which bring to the fore interesting questions in relation to shared responsibility.

SMUG v. Lively and the use of the Alien Tort Statute

The first development to be mentioned is a claim brought under the Alien Tort Statute (ATS). In SMUG v. Lively, an LGBTI organization in Uganda brought a claim against Scott Lively, a American anti-gay activist, author of the far from tastefully named book The Pink Swastika and a strong supporter of anti-gay legislation in Africa. The basic claim of the plaintiff is that Lively, through his support for violent and repressive actions against gays, is aiding and abetting crimes against humanity committed in Uganda. The case is set to go to trial, following the decision of the District Court to deny Lively’s motion to dismiss in August 2013. Basically, the judge considered that 1) the discrimination against gays in Uganda might constitute persecution as a crime against humanity and 2) if established, the fact that Lively influenced and advised Ugandan anti-gay activists could constitute aiding and abetting of such crimes. While the reasoning of the judge is shaky in a number of ways, this approach to such human rights violations is interesting.

It is difficult to evaluate the exact impact that this case might have if successful, because it would depend on where the judge at trial would set the threshold for aiding and abetting. However, should mere intellectual support by a random citizen in another country be deemed as aiding and abetting crimes against humanity, this could have far-reaching consequences in creating a responsibility not to support those who commit such crimes elsewhere.

The ICC as a possible avenue?

The second development is the “complaint” that the Prosecutor of the International Criminal Court (ICC) apparently received earlier this year calling on the arrest of three anti-gay activists for promoting crimes against humanity. It is not entirely clear what the legal status of this “complaint” is and it seems to be under consideration. Earlier this month a petition was launched in order to put the Prosecutor under pressure to act. This initiative has, in my view, near to no chance of success, given the current workload at the ICC and because a petition signed by 200 people online is hardly going to put any kind of “pressure” on Fatou Bensouda to do anything.

However, it is nonetheless interesting because the proposition that state-sponsored discrimination of gays could amount to crimes against humanity is certainly plausible. One could discuss whether the threshold for finding crimes against humanity has not been lowered too much in recent years at the ICC (notably in the Kenya situation), but the result is that the ICC could easily be shifting its attention from international crimes to more broadly defined gross human rights violations, and could be a possible tool in order to hold state leaders in check for the type of conduct that is currently taking place in Uganda.

The implications for shared responsibility

I think these developments, when seen together, are illustrative of the development of shared responsibility in international law, at least on two levels.

First, it is indicative of the development of a shared accountability, as mentioned in the SHARES Conceptual Framework, whereby several entities might be brought before various jurisdictions in order to cover various dimensions of an event. The various ways in which the Srebrenica massacre has been dealt with (before the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia and domestic courts against individuals, states and the United Nations) is a perfect example of that.

Second, it is indicative of a possible shared responsibility in dealing which such conduct, that relies on a framework of judicial bodies, both national and international and a web of legal regimes, such as human rights and international criminal law. This institutional and normative interdependence is yet again at the heart of the need to define and refine a more elaborate understanding of shared responsibility in international law.

The Surrender of Ntaganda to the ICC: A Story of Shared Responsibility Success

 Posted by: Irving Emma

While many have speculated as to why Ntaganda decided, after so many years, to hand himself in, what is interesting from the perspective of shared responsibility under international law is the ease with which he was transferred to the International Criminal Court (ICC). The situation was fraught with potential legal complications, given that it involved multiple international actors with the potential power to prevent the transfer. Despite this, Ntaganda was seamlessly handed over to the ICC within 5 days.

Bosco Ntaganda is a suspected warlord and key figure in the conflict in the eastern Democratic Republic of Congo (DRC). The ICC has issued two arrest warrants against him, one in 2006 and the other in 2012, for international crimes including rape, murder and the recruitment of child soldiers. The arrest warrants concern crimes committed in 2002-2003, however he has continued to be active in the region. More recently Ntanganda is thought to have headed the M23 rebel group, which took the DRC city of Goma last November.

On 18 March, Ntanganda walked into the US embassy in the Rwandan capital and handed himself in, requesting to be transferred to The Hague. However, neither of the parties directly involved in his surrender are party to the Rome Statute which established the ICC, and are therefore not obliged to cooperate with it. Despite this, within days there were ICC representatives in Rwanda to facilitate the transfer, and on 22 March Ntaganda arrived in The Hague.

The only legal provision which is designed to cover such situations is Article 87(5)(a) of the Rome Statute, which reads as follows:

The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

This article provides a flexible approach to cooperation between the ICC and non member States. It allows for anything from a formal agreement to an informal arrangement. Such flexibility is important given that a number of politically sensitive issues can arise. It is clear that some form of cooperation has taken place, given that an ICC delegation was sent to Rwanda to take part in the negotiations between the governments of the US, Rwanda and the Netherlands.

The willingness of the US to cooperate with the ICC is perhaps unsurprising. While originally hostile towards the Court, under Obama, the US administration has had a more positive approach. This is evident from the UN Security Council referrals of the Darfur and Libya situations to the ICC. Rwanda however is in a more complex position. Its cooperation with its ‘own’ international tribunal, the International Criminal Tribunal for Rwanda (ICTR), has been fractious. Furthermore, there are allegations that Rwanda is involved in the conflict in the eastern DRC, in particular backing the M23 rebels. As such Ntaganda may implicate Rwanda in his testimony before the Court.

It is not at this time known whether the cooperation between the parties involved in Ntaganda’s transfer to the ICC had a legal basis in the Rome Statute, or merely a political one. In this sense it is true that the situation is not a typical instance of shared responsibility, given that the actors involved do not owe a legal obligation to cooperate or to surrender Ntaganda to the ICC. However, it is an interesting instance of cooperation between multiple international entities. The absence of a strict formal framework may best cater for these types of shared responsibility (using this term loosely) situations, given the potential political difficulties: there may have been a formal agreement or an informal arrangement, both can be accommodated within Article 87(5)(a). What it clear is that cooperation in this instance of shared responsibility was successful, despite the US and Rwanda not being signatories of the Rome Statute.

Update – The Dutch Courts and Asylum at the ICC: From Shared Obligations to Obligations of No One

 Posted by: Irving Emma

In October 2012, the SHARES Blog carried a post that discussed a September Dutch Court decision concerning the on-going asylum situation at the ICC. Since then there are have been two important developments: the matter has been taken to the European Court of Human Rights (ECtHR) and the original Dutch decision has been overturned on appeal.

First, one of the detained witnesses sought to challenge his detention by bringing a claim against the host State of the ICC before the European Court of Human Rights (ECtHR). However, the application in Longa v The Netherlands was declared inadmissible on the basis that The Netherlands had no jurisdiction under Article 1 of the European Convention on Human Rights. While acknowledging that jurisdiction is primarily linked to territory, the ECtHR drew on previous case law dealing with the ICTY to decide that the mere presence of the ICC on Dutch territory is not sufficient to engage Dutch jurisdiction. It went on to dismiss the arguments made that the level of human rights protection at the ICC is deficient, and then rejected the notion that by accepting jurisdiction to hear the asylum claims the Netherlands had also accepted jurisdiction under the Convention. The Court held that there was no obligation on member States of the ECHR to allow a person to await to outcome of an asylum claim on its territory.

Armed with the Longa decision, the Dutch authorities filed an appeal to the earlier Dutch Court decision that would have compelled The Netherlands to take over control of the witnesses. The Appeals Court overturned the first instance decision on 18 December 2012. In this decision, the Dutch Appeals Court denied the lower court’s assertion that the witnesses were in a dead end detention situation, which as it had no end in sight, had therefore become illegal. It was held that just because the asylum procedure was lengthy, did not mean it was unending. The Court held that in any case, it was not for it to consider whether there was a conflict between the detention and Articles 5 and 13 ECHR: as the ECtHR had said in Longa, the Netherlands lacked jurisdiction under Article 1.

Once the ECtHR handed down its opinion on the situation of the detained witnesses, The Netherlands was offered an easy way out of the compromising position which the judge of the first instance court had placed it in. The Dutch authorities were no longer compelled to take over the witnesses, and suffer the precedential and political consequences that would entail. However that does not remove the question of whether the Longa decision was indeed a good one. On closer inspection, one might wonder whether the precedent the ECtHR relied on was not easily distinguishable. Having read the arguments of the applicant, one is struck by the fact that the ECtHR seems to have overlooked a number of relevant facts which may have led it to a different conclusion.

It is to be regretted that an unconvincing decision of the ECtHR has left the witnesses detained at the ICC unprotected. The September Dutch Court decision arguably took the better approach to the legal questions raised by the situation. Now the most pertinent question is to whom can the witnesses turn to seek relief? Not to the ICC, nor the DRC, and now not to the Netherlands. The result is an example of where shared obligations result in obligations for no one.