In March 2011, three defence witnesses, who were in detention in the Democratic Republic of Congo (DRC), were transferred to The Hague to testify before the International Criminal Court (ICC) in the trial against Germain Katanga and Mathieu Ngudjolo Chui. Once the witnesses had testified, they were returned to the DRC, even though they feared for their lives, and had lodged an asylum request with the Dutch authorities.
This article argues that the ICC is bound by the principle of non-refoulement: a prohibition on returning or extraditing an individual to a country where there is a real risk, or substantial grounds, they might be subjected to torture or other human rights violations. Like other individuals, ICC witnesses should enjoy protection from refoulement. This conclusion is based on analysis of the relationship between the ICC and international human rights law through two different approaches. The ICC, as an international organization, is obliged to respect the principle of non-refoulement but additional obligations stem from the Rome Statute. Article 21(3) obligates the ICC to interpret and apply the law governing protective measures in conformity with ‘internationally recognized’ human rights. In concluding that the ICC has not fully acknowledged the extent of witnesses’ rights, this article proposes strengthening the role of the witness protection programme to address the evident deficiencies in the ICC’s current practice.