Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27^th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23^rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1^st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11^th, rather than May 1^st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.