OPINION: Down but not out

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This article is part of the RNW archive. RNW is the former Radio Netherlands Worldwide or Wereldomroep, which was founded as the Dutch international public broadcaster in 1947. In 2011, the Dutch government decided to cut funding and shift RNW from the ministry of Education, Culture and Science to the ministry of Foreign Affairs. More information about RNW Media’s current activities can be found at https://www.rnw.org/about-rnw-media.

Last month the International Criminal Court (ICC) handed down the second verdict in its 10-year history: not guilty to Congolese militia leader Mathieu Ngudjolo Chui, who had been charged with crimes against humanity and war crimes relating to a deadly 2003 attack in the Ituri region of Congo.

But while Ngudjolo was released pending prosecutors’ appeal, three Congolese witnesses who testified against him remain in custody. They’ve spent almost two years in a prison cell in the ICC’s detention unit in a legal limbo one of their lawyers has compared to Guantanamo Bay.

Having lost their first legal round in their attempt to get asylum from the Dutch state last month, the lawyer for one of them, Flip Schüller, tells Lauren Comiteau about his two-pronged appeal to a higher court. A verdict is expected in April.

What is the basis of your appeal?

The first part has to do with Article 1F, the exclusion clause [under the Refugee Convention, which says war criminals are exempt from protection]. We are saying that the onus is on the state…because if they allege he’s a war criminal and not a refugee, then they have to prove he’s a war criminal.

We argued quite convincingly that there are no indications that our three clients are personally responsible or can be held accountable for war crimes. We recognize the situation in Congo is a mess—it is very complex and grave war crimes were committed.

But that’s not the issue. The issue is: can our clients be held accountable? They were politicians. The crimes were committed by militias and self-defense groups. It hasn’t been demonstrated that our clients had control. They were in custody for the alleged murder of nine UN troops, but there was never an indictment. They were held in Congo for the last seven years without one.

The second ground for appeal is that our clients run the real risk of torture if they are returned to Congo because they implicated [DRC President] Joseph Kabila during their testimony. They told the ICC to look at the bigger picture. The role of Kabila has been downplayed. The whole mess in Ituri is because of the state vacuum held together by Kabila with Rwanda and Uganda.

Our other main concern is that the Dutch government isn’t willing to look at the risks our clients face. They just don’t want to know.

But aren’t there clear rules in the agreement the ICC signed with the Netherlands as the host state of the court?

The problem is the system never thought of witnesses being extradited to the ICC when they made the agreement with the host state. This will set a precedent. It’s something for the Dutch courts to determine. At the moment they’re stuck. We’ve been challenging their detention in local courts and now it’s up to the Supreme Court.

What do you think the outcome will be?

My personal view is I can’t see the ICC maintaining the status quo endlessly. In the meantime, they can’t expel our clients to Congo. Maybe for another year our clients will be in custody, but they can’t keep them forever.

You have compared the situation of your clients to that of detainees in Guantanamo Bay, Cuba. Why?

The Dutch state tries to keep people away from court and out of range of Dutch law…. So yes, the analogy is an accurate one.

So what to you want to happen now?

The Dutch should take responsibility as the host state and not be so afraid of the Dutch judiciary. We’re not saying release our clients (although we’d like that), but we want Dutch judges to look at the situation. The Dutch judge refuses to cooperate with the ICC and the ICC has said several times that the Dutch need to take control of this situation.

What does your client think?

He’s anxious about the situation. It’s been a long time now.