Former ICC Defendant – Ngudjolo – Applies for Asylum in the Netherlands

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.

Exclusion from Refugee Protection

Article 1(f)(a) of the Refugee Convention declares that no refugee status can be granted when there are ‘serious reasons for considering’ that the applicant has committed war crimes, crimes against humanity or genocide, the crimes currently under the jurisdiction of the ICC. Ngudjolo’s application for refugee protection might well fail on the basis of this provision.

According to the UNHCR Guidelines to meet the standard of proof under Article 1(f), clear and credible evidence is essential. The Dutch asylum policy applies the ‘personal and knowing participation’ test. This implies that the Dutch IND will determine whether there are ‘serious reasons for considering‘ that an applicant knew or should have known that the crimes were being perpetrated and whether the applicant personally participated in any way to this criminal act.

In a very similar case, two Congolese defense witnesses in the Katanga and Ngudjolo case were excluded from refugee protection in the Netherlands on the basis of Article 1(f)(a) by the Dutch IND. One of the witnesses also held a high-level position within the FNI, a militia responsible for many international crimes according to reports from Human Rights Watch.

The decision of Trial Chamber II finding that Ngudjolo was not guilty ‘beyond reasonable doubt’ could essentially be attributed to the weakness of the case of the Office of the Prosecutor (OTP), which pivoted on the testimony of essentially three witnesses, as explained in depth over at Opinio Iuris. As Judge Cotte, one of the three judges put it: “declaring a person not guilty does not mean the Chamber is convinced of the person’s innocence; just that they are not convinced of the person’s guilt as charged.” Furthermore, Ngudjolo was only charged by the Prosecution with international crimes committed in the village of Bogoro, but there are indications that he was responsible for grave human rights abuses committed in other Congolese towns. For example, the Congolese government has accused Ngudjolo of war crimes for a massacre committed by FNI troops in the town of Tchomia in May 2003.

Diplomatic Assurances for Ngudjolo?

If the Dutch immigration authorities decide to exclude Ngudjolo from refugee protection, it would mean that he would not be granted legal status in the Netherlands. However, this does not mean that Ngudjolo can automatically be deported back to the DRC. Deportation of Ngudjolo to the DRC would be in violation of the Netherlands’ obligations under Articles 3 and 6 of the ECHR, if as he claims he will be ill-treated and flagrantly denied fair trial rights on his return.

The Dutch Government may try to negotiate ‘diplomatic assurances’ with the DRC authorities. The European Court of Human Rights (ECtHR), however, has always been cautious about reliance on diplomatic assurances. In a recent judgment on the issue, Othman (Abu Qatada) v. the United Kingdom), the ECtHR provided more clarification on the qualitative criteria which diplomatic assurances have to fulfil in order to comply with Article 3 of the ECHR. In assessing whether an expulsion constitutes a real risk of ill-treatment in the receiving State, the ECtHR examines the general human rights situation in the particular country and the specific characteristics of the applicant. When assurances have been given by a receiving State, the ECtHR applies various criteria to assess the sufficiency of the diplomatic assurances when implemented in practice. For example, the Court examines the preciseness of the assurances; the length and strength of bilateral relations between the sending State and receiving State, including the previous practice of the receiving State in complying with the assurances; and the fact that assurances were given at the highest levels of the Government. A careful look at other countries’ governmental reports and reports from reputable NGOs reveal that ill-treatment and torture are widespread in the DRC. Political opponents are regularly detained and tortured by the police. Hence, eventual diplomatic assurances that the Dutch Government may want to negotiate with the DRC authorities will have to be very robust to be in compliance with the jurisprudence of the ECtHR in the Othman case.

Relocation to a Third Country?

As an alternative, the Netherlands will probably be keen to solve this sensitive issue through international cooperation by requesting other ICC State Parties to relocate acquitted defendants. Up till now, the ICC has concluded agreements on the enforcement of sentences with 8 State Parties who are willing to accept sentenced persons, without taking into consideration the nationality of the sentenced person. While there is no explicit legal basis under the Statute for the conclusion of agreements to relocate acquitted defendants to State Parties, such agreements could be based on Article 86 of the Rome Statute, which enshrines a general obligation of States Parties to cooperate with the Court. However, it remains to be seen whether such agreements could be signed anytime soon. A healthy dose of scepticism seems warranted. As was highlighted during the last session of the Assembly of State Parties, States are usually reluctant to conclude witness and victim relocation agreements, even if they are to be entered into on a cost-neutral basis. Understandably, when it comes to relocating defendants acquitted of international crimes and allowing them to apply for asylum, States will be even more unenthusiastic, since they will continue to see those individuals as threats to their security. This is amply shown by the practice of the ICTR, where several acquittees unsuccessfully requested for asylum in third countries. It remains very difficult to convince States to grant acquitted defendants asylum, even when they were unanimously acquitted.

Whatever the outcome of the asylum application of Ngudjolo will be, the phenomenon of a ‘ICC-asylum seeker’ touches upon various complex political and legal issues of International Criminal Law, International Refugee Law and Human Rights Law, and the issue has already affected and will continue to affect the relationship of the ICC with its State Parties and its host State in particular.