The witnesses have spent almost two years in a prison cell in the ICCs
detention unit in a legal limbo one of their lawyers has compared to Guantanamo Bay. Last month they lost their first
legal round in an attempt to get asylum from the Dutch state.
RNW spoke with one of their lawyers, Flip Schüller, about the
two-pronged appeal to a higher court, the verdict of which is expected in
What is the basis of your appeal?
The first part has to do with article 1F, the exclusion clause [under the
Refugee Convention, which says war criminals are exempt from protection]. We
are saying that the onus is on the state…because if they allege [my client is]
a war criminal and not a refugee, then they have to prove hes a war criminal.
We argued quite convincingly that there are no indications that our
three clients are personally responsible or can be held accountable for war
crimes. We recognize the situation in Congo is a mess – it is very
complex and grave war crimes were committed.
But thats not the issue. The issue is: can our clients be held
accountable? They were politicians. The crimes were committed by militias and
self-defence groups. It hasnt been demonstrated that our clients had control.
They were in custody for the alleged murder of nine UN troops, but there was
never an indictment. They were held in Congo for the last seven years
The second ground for appeal is that our clients run the real risk of
torture if they are returned to Congo
because they implicated [DRC President] Joseph Kabila during their testimony.
They told the ICC to look at the bigger picture. The role of Kabila has been
downplayed. The whole mess in Ituri is because of the state vacuum held
together by Kabila with Rwanda
Our other main concern is that the Dutch government isnt willing to
look at the risks our clients face. They just dont want to know.
But arent there clear rules in the ICC
agreement signed with the Netherlands
as the host state of the court?
The problem is the system never thought of witnesses being extradited to the
ICC when they made the agreement with the host state. This will set a
precedent. Its something for the Dutch courts to determine. At the moment
theyre stuck. Weve been challenging their detention in local courts and now
its up to the Supreme Court.
What do you think the outcome will be?
My personal view is I cant see the ICC maintaining the status quo endlessly.
In the meantime, they cant expel our clients to Congo. Maybe for another year our
clients will be in custody, but they cant keep them forever.
You have compared the
situation of your clients to that of detainees in Guantanamo Bay, Cuba.
The Dutch state tries to keep people away from court and out of range of Dutch
law… So yes, the analogy is an accurate one.
What to you want to happen now?
The Dutch should take responsibility as the host state and not be so afraid of
the Dutch judiciary. Were not saying release our clients (although wed like
that), but we want Dutch judges to look at the situation. The Dutch judge
refuses to cooperate with the ICC, and the ICC has said several times that the
Dutch need to take control of this situation.
What does your client think?
Hes anxious about the situation. Its been a long time now.