By Jessica Joly Hébert (Montreal, Canada)
Upon its creation in 2002, the International Criminal Court (ICC) barely prepared with regards to eventual acquittals. In fact, the Rome Statute, despite ensuring the rights of the accused and the presumption of innocence (1), did not particularly anticipate the faith reserved to those who might get acquitted following several years of judicial saga. What can be appraised as a legal void now places acquitted persons in a complex situation, where some internationally recognized legal principles seem to be contradicting each other, at least, in certain cases.
The following commentary focuses on the recent acquittal of Mr. Mathieu Ngudjolo Chui by the ICC, considering the recency of the affair. Mr. Ngudjolo was first acquitted by the Trial Chamber II in December 2012. The case subsequently moved to the appeal phase, where the acquittal verdict was confirmed this winter 2015. Since 2013, Mr. Ngudjolo filed two asylum requests in the Netherlands, both of which have been rejected. Reportedly, the acquitted has now been deported back to his home country, the Democratic Republic of the Congo (2). Numerous similar cases might be encountered in the future, in front of the ICC’s chambers, or any other ad hoc tribunal, and this is why the issue related to the place of living of acquitted individuals should be planned ahead.
Legally, the Netherlands were allowed to use of their discretion and dismiss Ngudjolo’s asylum requests based on the premise that it had «serious reasons» to believe the claimant had committed international crimes (3). Based on this principle included in article 1 of the Convention relating to the status of refugees of 1951 (4) – which instrument is applicable in the Netherlands – the Dutch authorities were lawfully allowed to rule in that direction. Worthy of mention is the burden of proof to demonstrate «serious reasons», which is quite different than the «reasonable doubt» (5) one required by international criminal tribunals; it does not demand the irrefutable proof that one has actually committed the crimes beyond any reasonable doubt to refuse his entry as a refugee in the country. In that sense, one can be acquitted in front of a criminal instance, but still believed as having most likely committed crimes for asylum purposes.
However, another well-known rule of international law can be raised here and create an indefinite loop of uncertainty for acquitted individuals seeking asylum. For security reasons, an applicant for asylum can invoke the non-refoulement rule, which prevents a person from being sent to a country where he would fear for his life or freedom (6). In the present case, the Netherlands affirmed that «Ngudjolo failed to prove that he has reason to fear the DRC authorities upon return» (7), but one may question the objectivity of such a conclusion. Indeed, how can these demonstrations be effectively done with regards to the particular personal situation of this individual, after all these years of expatriation, after changes of political regimes and multiple unknown variables? Without overly questioning the arguments formulated by the Netherlands, nor wanting to defend acquitted individuals at all costs, it must be anticipated from such a reasoning that some situations in the future might present a stronger case based on the non-refoulement rule, which would highly complicate the possibility for the host State to refuse the entry of acquitted individuals on its territory as refugees.
As of now, no Member State of the ICC has manifested its interest in concluding agreements related to the future place of living of acquitted individuals (8). For the ICC to remain a vital and trusted organization, more efficient long-term solutions – which do not involve the accused exhausting his legal means in front of the legal authorities of the host State or repeatedly demanding asylum in a variety of countries – must be reached. The ICC must convince its Member States of the relevance of such agreements in order to anticipate the eventuality of acquittals’ judgments and alleviate the host State and other Member States from an extensive burden.
1- Rome Statute of the International Criminal Court (17 July 1998, A/CONF.183/9, (entered into force 1 July 2002)) at art 66, 67.
2- commscicc, «Netherlands to deport Congolese militia leader Ngudjolo», (1 May 2015), online: .; More recently: «Q&A: Life locked up at the International Criminal Court», (8 June 2015), online: .
3- commscicc, «Ngudjolo saga highlights need for ICC acquittal agreements», online: .: «The judges found that there were serious reasons to believe that Ngudjolo had committed a crime against peace, a war crime, a crime against humanity or that he had committed a serious non-political crime outside the Netherlands before his admission as refugee».
4- Convention Relating to the Status of Refugees (28 July 1951, 189 UNTS 137, (entered into force 22 April 1954)). See article 1(F)(a) – Definition of the term «refugee»: «The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes».
5- note 1 at art 66 al. 3.
6- note 4 at art 33.
7- commscicc, supra note 2.
8- Ibid.
