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).

Forgotten Weapons: The Syria Rebels’ Arms Pipeline

 Posted by: Lundahl Katarina

While all eyes are on chemical weapons in Syria and the permanent five are toasting over Resolution 2118, a clandestine international arms pipeline is quietly supplying the opposition forces with sophisticated weapons.

After The New York Times first reported in June on an unregistered arms pipeline delivering weapons to the rebels through a network of multiple state participants, news reports have continued to add more actors to the supply chain. In addition to a wide array of important US allies in the region, the involvement of the CIA itself and the Sudan has been alleged. Private smuggling and arms procurement networks further facilitate the movement, overlooked by sympathetic state authorities and sidelined by the focus on chemical weapons. An independent Syrian writer described the multitude of actors involved as the equivalent of supplying 100 million corner stores rather than a supermarket.

Meanwhile, aside from quiet voices of disapproval from Moscow, no one is making noise at the pipeline or claiming questions of responsibility are at play. The multitude of public and private players involved in the trafficking chain makes it difficult to designate responsibility within existing international law. Moreover, as the conflict in Syria has evolved from anti-government protests into a global proxy war with dirty hands on both sides, few actors are eager to cast the first stone and raise claims of state responsibility. In situations of civil war with a government of waning legitimacy, states do not consider the non-intervention principle as holy as could be assumed.

Reports (here and here), citing rebel and official sources supported by flight data, indicate that Turkey, Qatar and Saudi Arabia have provided weapons to the opposition and coordinated deliveries since 2012 in a covert alliance. Flight data cited in the reports shows that the airlift, which began on a small scale in early 2012, expanded into a steady flow in the fall of 2012, by then amounting to a ‘cataract of weaponry’, according to an anonymous former US official. The Wall Street Journal suggested last fall that these states formed a secret joint operations room in early 2012 to control the weapons flow to the rebels. The NYT report from June this year further described an elaborate distribution system created by the Syrian opposition with the support of Qatar and Turkey.

Besides regional US allies, also less likely sympathizers have been implicated in the chain. In August this year, the NYT reported that Sudan had sold weapons, including Chinese anti-tank missiles, to Qatar that then arranged for them to be delivered to the Syrian opposition forces through Turkey on Ukrainian-flagged aircraft. Besides planes from Qatar and Saudi Arabia, also Jordanian aircraft has been used for the transfers. The CIA has allegedly helped organize the transfers, albeit ‘mostly in a consultative role’ and facilitated arms purchases by the Arab governments, including a large procurement from Croatia. Some sources have even claimed that the CIA itself was engaged in arms smuggling from Libya to Syria during the 2012 Benghazi embassy attack.

These reports paint a picture of an extensive and well-coordinated arms trafficking chain, operated and facilitated by multiple state actors that continue to deny involvement as no one is asking questions. If the reports are accurate, the US and its key allies in the region are actively facilitating the illegal trafficking of arms to the rebels, motivated by their shared fear of seeing a victory for the Assad regime and, by extension, its Shiite ally Iran. The US is undoubtedly sympathetic to the goals of its Gulf allies in this regard and has little leverage over states like Qatar that are needed for pursuing other US interests in the region. Syria would not be the first instance where a sympathetic US has silently given its blessing to illegal activities of its Gulf allies. The UN Panel of Experts on Libya concluded in March this year that Qatar violated the UN arms embargo by supplying weapons to the Libyan opposition during the conflict in 2011, and the Obama administration secretly approved these deliveries.

Libyan weapons stockpiles are now considered to be the main source of the Syrian rebels’ weapons, which are then trafficked through Turkey or Northern Lebanon into Syria. The UN Panel of Experts on Libya concluded that the significant size of shipments from Libya towards Syria and the involved logistics suggest that Libyan authorities have been aware of the transfers, if not actively involved in them. Two years after the fall of the Gaddafi regime, most Libyan stockpiles are still under the control of non-State actors, while border control management and security remain significant challenges. Despite the embargo, Libyan stockpiles continue to fuel conflicts not only in Syria, but in the Sahel, Egypt and Gaza; for Syria, provided by the courtesy of the Qatar Emiri Air Force.

Russia has so far been the only state asking questions of the covert trafficking chain. In July this year, Russia attempted to have the weapons transfers by Qatar from Libya scrutinized by the UNSC Sanctions Committee established pursuant to Resolution 1970 (2011), which also placed an open-ended arms embargo on Libya. Although the embargo was amended by Resolution 2009 (2011) and Resolution 2095 (2013) to allow for limited exceptions, the embargo on exports is still in place making any state involvement in transfers from Libya a violation of UN sanctions. The Russian call was reportedly not supported in the Committee because some members of the Committee expressed doubts over the wisdom of probing the transfers solely on the basis of media reports.

The Committee however has the mandate to examine and take appropriate action on information regarding alleged violations of or non-compliance with the established sanctions. One can only speculate why the Committee has apparently chosen not to exercise its mandate on allegations regarding Qatar, Turkey and Libya, but its inaction adds yet another blind eye to the global reaction. In the absence of a UN probe, it remains up to individual states to bring responsibility claims and, so far, such claims have not been forthcoming. In the face of chemical weapons use by the Syrian government forces, more states are likely to become sympathetic with the rebels’ cause and thereby more inclined to continue to turn a blind eye to the illegal arms pipeline supplying the opposition.

Regardless of the origin of the weapons being trafficked through the pipeline (whether a state under embargo or not), and irrespective of what the rebels do with these weapons, supplying weapons to an opposition group seeking the overthrow of a sitting government is difficult, if not impossible, to justify under international law in these circumstances. The states participating in different roles in the illegal arms transfers are therefore responsible for their respective wrongful acts in the chain. Since most of these states are, in one way or another, supporting illegal acts, they have very little interest in creating or enforcing a more stringent rule of complicity.

The second element of state responsibility, attribution, is even more problematic. With an astonishing multitude of states and other actors facilitating the supply chain in various ways, it would be extremely difficult to establish sufficient causation for the purposes of responsibility. This poignantly illustrates the inability of international law lex lata to offer solutions to deal with situations involving a complex web of actors with highly differentiated contributions.

In the euphoria generated by the diplomatic victory of avoiding a military intervention in Syria and reaching a deal on Syria’s chemical weapons, topped of by the Nobel Peace Prize awarded to the OPWC last week, few seem to remember that conventional weapons, pumped into Syria by the clandestine pipeline, keep fueling a war that has already claimed the lives of more than 100,000 people.