In the Katanga case before the International Criminal Court, the defense called three witnesses who were detained at the central prison in Kinshasa by the government of the Democratic Republic of Congo. After they testified publicly at the ICC, the witnesses' lawyer asked the Trial Chamber to present them to the Dutch authorities so that they could file asylum claims based on their fear of retaliation at the hands of the DRC government. By the time of the Court's decision, that question was moot as the asylum claims had been filed.
The Court's opinion nonetheless discusses two crucial questions concerning the intersection of refugee law and international criminal law: (1) which body is responsible for determining asylum claims by witnesses at international criminal courts and (2) how to address conflicts between international criminal law obligations and the non-refoulement principle.
With respect to the first question, the Court noted that its obligation to protect witnesses is limited to those risks they face as a result of their testimony. The Court is not required to address general human rights violations in the witnesses' country of origin nor must it determine the risks of persecution faced by witnesses applying for asylum. In other words, the responsibility for assessing the applicability of the non-refoulement principle lies with the Dutch authorities alone.
The Court also addressed the conflict between the non-refoulement principle and its obligation to return the witnesses "without delay" to the DRC under the Rome Statute. Defense counsel for Katanga claimed that the Dutch government's obligation to guarantee the rights enumerated in the European Convention on Human Rights override any agreement with the ICC. The Prosecutor, in contrast, argued that the witnesses remained Congolese detainees, with the Dutch authorities "merely facilitating" their detention in The Hague. The Registry came down similarly, noting that the Congolese authorities transferred the witnesses solely for the purpose of their testimony. The Dutch government also argued that the witnesses were not under their authority or jurisdiction but rather under the jurisdiction of the Court while they remained in the Netherlands.
The Court found, however, that the requirement of return "without delay" to the home state found in Article 93(7) of the Rome Statute must be interpreted consistently with the principle of non-refoulement and the right to an effective remedy. In practical terms, this means that the Court could return a detained witness only if the Dutch government rejected his asylum application.
It seems right that international criminal courts should not be involved in asylum determinations, but the oddity in this proceeding is that while the Dutch authorities were processing the asylum claim, the Registry was discussing with DRC authorities protective measures that might be applied to the witnesses. In most asylum proceedings, the identity of the applicants is kept strictly confidential in order to prevent retaliation by the home state either in the host country or, if the application is denied, upon return. One might argue that this differential treatment is appropriate here where the identity of the witnesses is well known to their government. Yet it's hard to get around the concern that the ongoing negotiations concerning the protective measures must undercut either the validity of the asylum claims or the Court's judgment in relying on the assurances of a state well known for its human rights abuses.
And while the non-refoulement principle should surely trump the ICC statute's requirement of return of detained witnesses, the ramifications of this decision may not be entirely positive. States may become unwilling to transfer such witnesses if they realize that asylum is an option. The Dutch government may be less than enthusiastic about the prospect of processing such claims, particularly given that detained witnesses for the defense may themselves have committed international crimes (consider that one witness for the Katanga defense was subject to a UN Security Council travel ban that had been lifted only so that he could testify before the ICC). There are no easy answers here, only a reminder that decisions at the intersection of the principle of non-refoulement and international criminal law must be assessed cautiously and holistically.
(Hat tip to the PhD Studies in Human Rights blog.)