Asylum Applications of Katanga Witnesses May Complicate ICC’s Future Work

October 1st, 2012 by Admas Habteslasie

Germain Katanga

In a development that could have wide-reaching ramifications for the relationship between the Dutch government and the International Criminal Court (ICC), an Amsterdam court recently ruled that three witnesses testifying at the ICC who applied for asylum in the Netherlands must be transferred to Dutch custody.

A Dutch district court had ruled in December that the witnesses could apply for asylum in the Netherlands. However, the witnesses have remained in ICC custody since then and the more recent decision requires the Dutch government to take custody of the witnesses.

The three unnamed witnesses had been transferred to the ICC’s detention centre in the Hague in May 2011 in order to testify in the ICC’s ongoing case against Congolese militia leader Germain Katanga. Prior to their transfer, the witnesses were awaiting trial in the Democratic Republic of Congo. Two of the witnesses had been detained in Congo in 2005 under an accusation of being involved in the murder of U.N. troops, while the third was detained in 2010 on suspicion of treason. According to the Dutch lawyer representing the witnesses in their asylum application, they feared for their safety if returned to Congo due to the fact that their testimonies incriminated the Congolese President Joseph Kabila in large-scale human rights violations.

The Dutch Immigration and Naturalisation Service (IND) had initially refused to accept the asylum applications of the three witnesses. The IND’s position was likely influenced by the Headquarters Agreement between the ICC and the Netherlands, which stipulates that persons summoned by the ICC are not subject to Dutch law. The Dutch court’s recent decision entrenches an apparent loophole whereby ICC detainees may bring themselves under Dutch law by applying for asylum. It has been noted by commentators that this development may complicate the ICC’s future attempts to transfer detainees from other countries. The court ordered the Dutch government to take custody of the witnesses within four weeks.

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