It was a warm, sunny Sunday, July 6, and the Netherlands was celebrating the victory of its football team in the quarter finals of the World Cup. Hardly anybody was paying attention as the Dutch authorities put three Congolese men, whose asylum applications had been turned down by the Netherlands’ highest court a week earlier, on a plane and sent them back to the Democratic Republic of the Congo. When they arrived in Congo’s capital, Kinshasa, the men were immediately taken to prison.
These men are no ordinary failed asylum seekers. What is special about their case is that they are the first witnesses at the International Criminal Court (ICC) in The Hague who testified before the court and then requested asylum in the Netherlands. They claimed that their safety and human rights would be violated if they were returned to Congo since some of their testimony had implicated the Congolese president, Joseph Kabila, and they had languished without charge or due process in a Congolese prison for years prior to coming to testify.
Their case created a host of complex legal problems and was a major headache for the ICC, and the Dutch and Congolese governments. On Sunday their legal battle for protection in the Netherlands ended. The men now face the risk that they won’t receive a fair trial before national courts in Congo.
Floribert Njabu, Sharif Manda and Pierre-Célestin Mbodina were invited to testify for the defense in the ICC trial of German Katanga, a former Congolese rebel leader, for grave international crimes in the Ituri district in northeastern Congo in 2002-2003. Before their transfer to ICC custody in The Hague in March 2011, the three men had already been held for several years in Congo’s maximum security prison in Kinshasa.
Njabu and Mbodina are facing charges of war crimes and crimes against humanity before the Congo’s military justice system. The rebel group in which they had played a leading role had been responsible for the deaths of thousands of civilians, many of them brutally slaughtered on an ethnic basis, as well as torture, rape and recruitment of child soldiers.
In accordance with provisions in its founding treaty, the ICC had made a commitment to return them to Congolese custody as soon as they completed their testimony. But in May 2011, the witnesses, expressing fear for their safety and rights if they were returned to Congo, sought asylum in the Netherlands.
After a more than three-year legal battle, the Netherlands’ highest court, the State Council, decided on June 27 that the witnesses should be denied asylum because of their suspected involvement in grave international crimes and should be returned to Congo. The judges of the State Council – overruling a lower court – found that their human rights would not be at risk if they were returned.
Human Rights Watch remains concerned about respect for the men’s rights in Congo. We called on the Dutch state secretary for security and justice, Fred Teeven, to use his discretion to delay their expulsion until he was fully satisfied that the witnesses’ right to a fair trial in accordance with international standards would be respected.
We further urged Teeven to engage with Congolese authorities before returning the witnesses and ask that they take a number of measures to bolster the chances of a fair trial. These measures could include ensuring that the witnesses have an experienced defense lawyer of their choosing and access to legal aid if they are indigent. They should also be prosecuted before a court that allows an appeal before an independent panel of professional judges. And Congo could ask the United Nations mission in Congo (MONUSCO) to assist in necessary investigations, during trial proceedings and with the protection of victims and witnesses, including defense witnesses.
After years of legal back and forth, the Dutch government apparently did not want any more delay and did not seek further engagement with Congolese authorities on these points before deporting the three witnesses.
Yet, now that the men are out of sight, they should not be out of mind. The Dutch government should not leave the ICC witnesses to their fate. In accordance with guarantees provided by the Congolese authorities to the ICC, protection officers from the court are to visit the witnesses and monitor the proceedings against them. The ICC, as well as Dutch and other diplomats who may follow the proceedings in Kinshasa, should publicly denounce irregularities they may witness. The Dutch authorities should also engage directly with the Congolese authorities in Kinshasa to secure the concrete steps listed above toward ensuring fair trials for the ICC witnesses.
Njabu and Mbodina may be suspected of participating in grave international crimes committed by their former rebel group in Congo – and their role in such crimes should be investigated. But isn’t a key lesson from the ICC – of which the Netherlands is a strong supporter and the host country – that even suspected war criminals have a fundamental right to a fair, credible and impartial trial?