Mathias Holvoet is PhD-Researcher in International Criminal Law at the Vrije Universiteit Brussel, Belgium. He is also a member of the Research Group on Fundamental Rights and Constitutionalism (FRC). Dersim Yabasun is a PhD-Researcher in the International and European Law Department, Maastricht University, The Netherlands.
On 18 December 2012, Mathieu Ngudjolo Chui (Ngudjolo) – a Congolese militia leader – became the first to be acquitted before the ICC, after Trial Chamber II judged that he could not be found guilty beyond a reasonable doubt of charges of war crimes and crimes against humanity committed in the village of Bogoro in 2003. Ngudjolo was released on 21 December 2012. Subsequently, according to Ngudjolo, the Dutch government decided to repatriate him back to the Democratic Republic of Congo (DRC). Since Ngudjolo feared persecution in the DRC because of his incriminating testimony against the Kabila government during his trial, he decided to apply for asylum in the Netherlands to prevent his expulsion. Furthermore, Ngudjolo requested the ICC to require the Netherlands to hand him over to the Court, with whom he would negotiate a place to live pending his asylum examination and during the appeal proceedings. In addition, Ngudjolo requested the Court to order the Victims and Witnesses Unit (VWU) to provide for his protection. The Appeals Chamber will decide on these requests later this year.
The Dutch authorities have approached this whole new development of ‘ICC-asylum seekers’ with serious concern.
There is a reasonable chance that Ngudjolo will be excluded from refugee protection by the Dutch Immigration and Naturalization Service (IND) on the basis of Article 1(f)(a) of the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention), as was the case with two defense witnesses in the Katanga & Ngudjolo cases who applied for asylum in the Netherlands in 2012. However, if there is a risk that Ngudjolo would be subjected to torture or degrading treatment if he were to be expelled to the DRC, Article 3 of the European Convention on Human Rights (ECHR), which protects any person and has an ‘absolute’ character, might prevent his expulsion to the DRC. In that case, Ngdudjolo may find himself in a ‘legal vacuum’. He would be ordered to leave Dutch territory, but at the same time the Dutch authorities are not allowed to expel him to the DRC because of its obligations under European human rights law. This piece will discuss the chances of returning Ngudjolo on the basis of diplomatic assurances and the option of relocation for future acquitted defendants to third countries.