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).

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.

From Shared Obligations to Individual Obligations: The Hague District Court and Asylum at the ICC

 Posted by: Irving Emma

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.

Europe’s torture watchdog on shared responsibility of Belgium and the Netherlands for Tilburg prison

 

Posted by:

Heijer Maarten den

Topics:

International Criminal Law, International Human Rights

Belgium has for many years been struggling with significant prison overcrowding. The Netherlands, on the other hand, has in recent years seen its prisons gradually emptying due to a decline in crime, forcing the Dutch government to close eight of its prisons. The two countries came up with the obvious solution, although one never adopted before in Europe: Belgium would rent an already staffed and equipped prison in the Netherlands. The location chosen was Tilburg prison, which is quite close to the border with Belgium.

The terms of the rent are set out in the Interstate Convention of 31 October 2009 (Dutch only), which entered into force on 1 February 2010. According to the agreement, Belgium will rent the prison for the sum of €30.000.000 per year for up to 500 detention places, with €212.917 more for every extra 50 places. With a maximum capacity of 681 places, of which 675 have now been filled, Tilburg Prison is in fact Belgium’s largest prison for sentenced prisoners. The Interstate Convention details a number of aspects of the relations between the two Contracting Parties, including matters such as the applicable law, the protection of privacy, and the Belgian director’s powers and general responsibilities.  It also covers the placement of prisoners within Tilburg Prison, arrangements for sentence enforcement, prisoners’ complaints and actions, medical care outside the prison, transport, escapes, deaths, and security.  Further, the Interstate Convention includes provisions on criminal matters and provisions relating to inviolability and immunities.

The agreement raised some issues for the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – the Council of Europe’s Anti-Torture watchdog – which regularly monitors prisons within the 47 Member States of the Council of Europe. Last week, the CPT published its report on the visit it brought to Tilburg prison in October 2011. The CPT explains its role in connection to this unprecedented form of cooperation as follows:

‘The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, of 1989, provides that “Each Party shall permit visits, in accordance with this Convention, to any place within its jurisdiction where persons are deprived of their liberty by a public authority” (Article 2). In application of the Interstate Convention, the Netherlands makes available the prison premises and the prison and medical staff and transfers the prisoners. Dutch criminal law is applicable within the prison. On the other hand, all the inmates present in the prison are serving final sentences imposed by Belgian courts, in pursuance of Belgian legislation, and the prison regime is Belgian. All the staff working in the prison are Dutch with the exception of the Prison Director, two Deputies and the staff from the Penitentiary Psychosocial Service. Taking account of the Interstate Convention, and particularly the aforementioned elements, there is clearly shared jurisdiction where Tilburg Prison is concerned. Consequently, the visit to this prison was notified to the Netherlands and Belgium in pursuance of Article 8, paragraph 1 of the Convention. Furthermore, the visit report has been forwarded to both States Parties, and it is for the authorities of these two States to reply, each in respect of the matters for which they are responsible.’

In effect, the CPT’s report reads like any other report it publishes, the only difference being that its recommendations are directed at two Contracting States instead of one. The CPT thus leaves any question of which party should follow up on which recommendations up to Belgium and the Netherlands to solve. Such issues should in the first place be answered on the basis of the treaty. Of practical importance is that the treaty provides that all complaints channels open to prisoners are directed to the Belgian prison authorities. But it is not unimaginable, especially in view of the fact that Dutch staff is responsible for the daily security and treatment of the prisoners, that the Netherlands would share in part of the obligations as well. The specific tasks and duties of Dutch staff are set out in a further (unpublished) cooperation agreement between the Belgian Directorate-General for Penitentiary Institutions and its Dutch counterpart. The Belgian Minister for Justice explained (Dutch only) to the Belgian parliament that in practice, ‘there would be a mixture of obligations that could fall under either Belgian or Dutch law’.

Fortunately, the report is quite positive about the treatment in Tilburg prison. Although the CPT notes some issues such as inter-prisoner violence and a lack of educational and cultural activities, the prisoners seem quite pleased about the treatment in the Netherlands, emphasising ‘the professional attitude and respect shown to them by the prison staff’ and making ‘particularly favourable comments about the difference in attitude – characterised by dialogue and constant contact – between the staff at Tilburg and those at other Belgian prisons’.

One issue which does bother the prisoners however, is the Dutch food. As in any Dutch prison, the main dish is delivered frozen, pre-packaged and uniform. In Belgium however, dishes cooked on the spot are the norm. The CPT delegation was told that up to 30% of the frozen food was deposited in the bin straight away. But the CPT was pleased to note that, being aware of the issue, the prison authorities have taken the initiative of installing small kitchens in the detention units where the prisoners can cook themselves.

Ivory Coast and Shared Responsibility: Is Everybody Responsible?

 Posted by: Jacobs Dov

Cross-posted on Spreading the Jam

Ivory Coast is quickly becoming a political nightmare. Indeed, with the evidence of crimes being committed by Gbagbo forces, as well as by Ouattara’s supporters, the international community is faced with a dilemna: if it turns out that Ouattara is indeed condoning such actions, how can he be supported by the world community, if it is to be consistent with calls for removal of other leaders who have alledgedly been involved in such situations, such as Khadafi in Libya? The result of such consistency would however be a political vaccum that might create more chaos in the country.

Beyond this political dimension, the situation raises interesting issues of Shared Responsibility. In her previous post, Bérénice considered the Shared Responsibility of France and the UN in Ivory Coast. One issue that needs to be considered in addition to that is the question of the responsibility for the crimes being committed on the ground, by both sides, which is even more complex.

Indeed, this is a case of Shared Responsibility which involves several types of entities, several levels of responsibility and types of obligations from various areas of law.

The first level is obviously the individual responsibility of those committing the crimes, which would arguably fall under several categories of International Criminal Law (ICL), whether under the war crimes of the crimes against humanity label. Still within ICL is the command responsibility of the military, but also civil, leaders.

The second level requires looking at the entities to whom those crimes can be attributed. Interestingly, because Ouattara has been recognised by the entire international community as the legitimate representative of Ivory Coast, you can argue that the State Responsibility of Ivory Coast could be invoked. Also, and to make things even more interesting, it appears that mercenaries from other countries, more particularly Liberia, are involved. Depending on the facts, this could give rise to either direct responsibility of Liberia, should it be wilfully supporting the mercenaries, or, alternatively, failure to exercise due diligence, at least over its own territory and borders, if it could have prevented such a situation.

The third level is that of the responsibility of external entities, more particularly France and the UN, not only for their actions as considered by Bérénice, but also for actions by the parties to the conflict. The first angle that one could adopt, is their failure to exercise its responsibility to protect, as an emerging, but strongly debated and contested, norm of international law. Should the actions fall under genocide (there is some evidence that specific tribes are being targetted), it could trigger the specific duty to prevent that was recognised (if haphazardly applied) by the ICJ in the Genocide Case (PDF) in relation to Serbia. The second possible angle is complicity. Indeed, this might seem a little far fetched, but to the extent that the international community has been positively supporting Ouattara, not only politically, but also militarily, by targetting exclusively Gbagbo forces, couldn’t it be seen as an active participant in the conflict (I have argued elsewhere against the fiction of neutral external intervention), and therefore be help responsible if the party it supports commits crimes that were foreseeable? this certainly raises issues of knowledge and intent which, under their current definition in international might not cover such situations, but the question should at least be considered.