ICC Witnesses and Acquitted Suspects Seeking Asylum in the Netherlands: An Overview of the Jurisdictional Battles between the ICC and Its Host State

Abstract

By way of side-effect, and to an extent that had not been foreseen, the Netherlands is confronted with asylum applications from persons involved in proceedings before the International Criminal Court (ICC), which it hosts in The Hague. These applications have led to an unprecedented body of case law from both the ICC and the Netherlands judiciary regarding the protection of the applicants. Central to this case law is the question of allocation of responsibility for the protection of the persons involved, particularly with respect to the prohibition of refoulement. This article provides an analysis of the relevant cases regarding asylum applications from persons involved in ICC proceedings, namely, detained defence witnesses, voluntary witnesses for the prosecution, and acquitted suspects. It particularly examines and evaluates the jurisdictional delimitations made by the ICC and the Dutch courts, and the fundamental questions of refugee and human rights protection that are addressed in these cases. With regard to domestic case law, the focus will be on the way in which key provisions of international refugee law - such as the application of articles 1A, 1D and 1F of the 1951 Convention Relating to the Status of Refugees - and the safe third country concept are applied. The article concludes that the basic rights of former ICC witnesses and suspects are not always addressed adequately and appear to be lost in the divide created by the jurisdictional battles between the ICC and its host state.