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

Judiciary – Key Decisions Protection and Protective Measures
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authorities of their country of origin. 2142 However, it
acknowledged its obligation under internationally
recognised human rights laws to honour the detained
witnesses’ right to seek asylum, and concluded that
it could not interfere with that right, nor with the
principle of non-refoulement. 2143
The Chamber also held that it was not under any
obligation to assess the risks of persecution faced by
witnesses seeking asylum; nor was non-refoulement
strictly applicable as the Court had no territory
in which to maintain jurisdiction over witnesses.
The Chamber thus rejected the application by the
witnesses’ counsel to file an amicus curiae brief on the
asylum issue. Because the application for asylum was
already before the Dutch authorities, the Chamber did
not find that an amicus brief would be ‘useful’ in its
determination of any facts. 2144
Finding that it could not disregard human rights law
that provided for open recourse to asylum proceedings,
the Chamber ordered the Registry to authorise contact
between the detained witnesses and their Dutch
asylum counsel as soon as possible. 2145 The Registry
had prohibited their contact with counsel pursuant
to the pre-existing agreement with the Congolese
authorities, from whom prior authorisation was
needed for all contact with individuals outside the
detention centre. 2146 The Chamber also instructed
the Registry to inform the UN Security Council of the
situation regarding Witness 236, on whom the Security
Council has imposed a travel ban. 2147
Significantly, in the 9 June decision, the Chamber
refrained from ruling on whether proper protective
measures could be implemented prior to the return
of the witnesses, noting that if it were satisfied with
protective measures in place in the DRC, ‘there would
in principle be no reason for the Court to delay the
witnesses’ return to the DRC any further’. 2148 In an
earlier risk assessment, the VWU had determined that
as a consequence of their status as witnesses before
the ICC, there appeared to be no increased risk of
2142 ICC-01/04-01/07-3003, para 62.
2143 The protection of refugees from being returned to
a place in which their lives or freedoms could be
threatened. ICC-01/04-01/07-3003, paras 67-69.
2144 ICC-01/04-01/07-3003, paras 53-54.
2145 ICC-01/04-01/07-3003, paras 63-64.
2146 ICC-01/04-01/07-3003, para 75.
2147 The witness, Floribert Ngabu Njabu, former President
of the FNI, was arrested and placed under house arrest
in Kinshasa in March 2005 for human rights abuses.
Both accused are also subject to a travel ban. See, List
of individuals and entities subject to the measures
imposed by paragraphs 13 and 15 of Security Council
Resolution 1596 (2005), as renewed by paragraph 3 of
Resolution 1952 (2010).
2148 ICC-01/04-01/07-3003, para 85.
harm. 2149 The VWU did note, however, that it would
be difficult to implement appropriate protective
measures for detained witnesses within a prison
system. 2150
In a subsequent decision, issued on 22 June, after
the Registry filed observations regarding the efficacy
of proposed protective measures on 7 June, 2151 the
Chamber determined that the implementation of
the proposed protective measures would meet its
requirements and allow for the return of the detained
witnesses. These proposed measures included:
placement of the witnesses in a maximum protection
facility, with specially-trained guards and security from
co-detainees, and visits from members of the VWU
twice weekly as well as during any proceedings against
them. 2152 Yet, in an apparent reversal, the Chamber
deferred the witnesses’ return, pending resolution of
the asylum proceedings. It stated:
in principle, therefore, the detained
witnesses can be returned as soon as the
VWU confirms that the DRC has accepted
to cooperate with the Court in this matter
and all necessary preparation has been
accomplished. However, the Chamber
reminds the DRC that even if the above
measures are in place, the Court will only be
able to return the detained witnesses if their
request for asylum has been rejected by the
Dutch authorities. 2153
The issues on appeal
The Office of the Prosecutor, the Government of the
Kingdom of the Netherlands and the DRC all filed
applications for leave to appeal the Chamber’s decision
of 9 June. 2154
In their application for leave to appeal, 2155 the DRC
authorities underscored their continued verbal
assurances and ‘stellar’ cooperation with the Court
on all matters, and indicated that the Chamber’s
decision to suspend the immediate return of the
witnesses was in violation of their cooperation
2149 ICC-01/04-01/07-2799-Conf cited in ICC-01/04-01/07-
2952, paras 26, 32.
2150 ICC-01/04-01/07-2952, paras 12, 33.
2151 ICC-01/04-01/07-2989. This report is disputed by counsel
for the witnesses.
2152 ICC-01/04-01/07-3033, para 41. It remains unclear
whether a facility that can guarantee these
requirements currently exists in the DRC and how the
Registry will ascertain compliance with these conditions.
2153 ICC-01/04-01/07-3033, para 42.
2154 ICC-01/04-01/07-3021, ICC-01/04-01/07-3020, and ICC-
01/04-01/07-3023, respectively.
2155 ICC-01/04-01/07-3023.