Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Protection and Protective Measures
Protection measures
for the Defence
Detained defence witnesses seek
asylum in the Katanga & Ngudjolo
and Lubanga cases
An increasing number of decisions have
concerned protective measures related to
the Defence. Described in detail in the Trial
Proceedings section of this <strong>Report</strong>, Trial
Chambers I and II issued significant rulings
concerning detained Defence witnesses in
the Katanga & Ngudjolo and Lubanga cases
as a result of their asylum applications to the
Dutch authorities. 2135 It was the first time that
witnesses before the ICC applied for asylum.
2135 ICC-01/04-01/07-3003; ICC-01/04-01/07-3033; ICC-
01/04-01/07-3128.
The Prosecutor v. Germain Katanga &
Mathieu Ngudjolo Chui
On 9 June 2011, Trial Chamber II issued the first in a
series of decisions suspending the immediate return
of three detained Defence witnesses in the Katanga
& Ngudjolo case to the DRC, pending their political
asylum applications in the Netherlands. 2136 All three
had been detained in the Makala prison in Kinshasa
and were transferred to The Hague to testify pursuant
to Article 93 of the Rome Statute, Rule 192 of the
Rules of Procedure and Evidence and a cooperation
agreement between the Registry and Congolese
authorities. 2137 This was the first time a witness before
the ICC has applied for asylum.
Counsel for the detained witnesses claimed that if
they were returned to the DRC, their lives and those
of their families would be in danger as a result of
their knowledge of the Government’s role, specifically
that of ‘the most senior authorities’, in the attack
on Bogoro. 2138 In support of this allegation, on 26
May, counsel for the three witnesses sent an urgent
communication to the Trial Chamber regarding the
status of Colonel Richard Beiza Bamuhiga (Congolese),
who was brutally assaulted by Ugandan security
forces, following the revocation of his refugee status
based on an agreement between Congolese and
Ugandan authorities. 2139
In its decision, the Trial Chamber II addressed both
its obligations regarding witness protection and the
witnesses’ asylum claims. It drew a clear distinction
between the scope of its duty to protect witnesses
under Article 68 of the Rome Statute and its duty to
protect them against human rights violations more
generally. 2140 Specifically, it found that Article 68
imposed only a narrow mandate to ‘prevent the risk
witnesses incur on account of their cooperation with
the Court’. 2141 In contrast, the Chamber concluded
that it did not have a mandate to protect witnesses
more generally from human rights violations by the
2136 ICC-01/04-01/07-3003.
2137 These regulations create a procedural framework that
directs the Registrar to manage the transfer and custody
of detained witnesses and return them following their
testimony. Article 93(7) requires that the transferred
person shall remain in custody until the purposes of the
transfer have been fulfilled, upon which the Court shall
return the person without delay to the requested State;
Rule 192 delegates responsibilities under the article to
the Registrar.
2138 ICC-01/04-01/07-T-258-FRA, p 17 lines 17-25; p 18 lines
1-25; p 19 lines 1-19.
2139 ICC-01/04-01/07-2963.
2140 ICC-01/04-01/07-3003, para 59.
2141 ICC-01/04-01/07-3003, para 61 (emphasis added).
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