The Application of Human Rights Jurisdiction by the Netherlands to Avoid Asylum Claims by International Criminal Court Witnesses

Abstract

The decision of the Dutch Supreme Court rejecting non-refoulement claims by certain witnesses before the International Criminal Court presents a massive failure to correctly and consistently interpret the jurisprudence of the European Court of Human Rights on jurisdiction.

The Supreme Court argued that the Netherlands did not have jurisdiction because the witnesses were in the custody of the ICC. However, the state is bound by the ECHR to provide for non-refoulement in all of its state territory, and the ICC is clearly within Dutch territory. We will presume that the ECHR applies to this case until this presumption is rebutted. Yet, the Netherlands has willingly cooperated with the ICC in the Headquarters Agreement to retain a large degree of control over the operations regarding witnesses, and only agreed to refrain from interfering with the core duties of the ICC. This case is nothing like military control. It is also not like the SOFA or prior ICTY/ICC cases. Moreover, the ICC/ICTY cases seem to violate existing jurisprudence on escaping responsibility for human rights and the real focus of decision control is not on de jure allocation of jurisdiction but actual de facto physical control. And in this case, the Netherlands has a significant degree of de facto control over the witnesses, though it may have certain de jure duties in relation to the ICC. Lastly, the Netherlands still, regardless of the above analysis, retains some residual jurisdiction and obligation to take all diplomatic, economic, judicial or other steps it can to secure non-refoulement. Sadly, in this case, the Netherlands failed to do so.

Keywords: Non-Refoulement, International Criminal Court, Netherlands, Witnesses, De Facto, De Jure, Control, European Convention On Human Rights, ECHR, Jurisdiction

JEL Classification: K00, K10, K14, K30, K33, K37, K39, K40, K49