When International Criminal Justice Collides with Principles of International Protection: Assessing the Consequences of ICC Witnesses Seeking Asylum, Defendants Being Acquitted, and Convicted Being Released

Abstract

AbstractIn 2011 three Congolese ICC defence witnesses applied for asylum in the Netherlands. A decision has not yet been made. This article argues that three outcomes of their procedures are most likely: (i) an asylum permit is granted, (ii) a permit is denied, or (iii) the applicants are excluded from refugee protection on the basis of Article 1(f)(a). All scenarios would have serious practical and political consequences for the ICC, the Netherlands, and the DRC. There is a limited, but real, chance that future defence witnesses will also apply for asylum. This mere threat might already seriously hamper future co-operation between the ICC and states parties. More practical and political dilemmas stemming from a lack of harmonization between international criminal law and principles of international protection lie ahead, since a coherent scheme on how to deal with ICC defendants whose case has been rejected in the pre-trial phase, who have been acquitted, or who have served their sentence and cannot be refouled to their country of origin has thus far not been realized. As it stands the international community does not have an answer to this fundamental system error yet.