73. The applicant was brought to the Netherlands as a defence witness in a criminal trial pending before the International Criminal Court. He was already detained in his country of origin and remains in the custody of the International Criminal Court. The fact that the applicant is deprived of his liberty on Netherlands soil does not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands as that expression is to be understood for purposes of Article 1 of the Convention.
74. It is however the applicant’s case that now that he has given his testimony, his continued detention by the International Criminal Court lacks a basis in law. The vacuum thus created can be filled only by the Netherlands legal order, in which the Convention is directly applicable.
75. The Court finds that as long as the applicant is neither returned to the Democratic Republic of the Congo nor handed over to the Netherlands authorities at their request, the legal ground of his detention remains the arrangement entered into by the International Criminal Court and the authorities of the Democratic Republic of the Congo under Article 93 § 7 of the Statute of the International Criminal Court. This is reflected in Trial Chamber I’s Order of 1 September 2011 and its Decision of 15 December 2011 (see paragraphs 23 and 24 above), which make it clear that the International Criminal Court is waiting to comply with its obligation under Article 93 § 7 (b) of its Statute to return the applicant to the Democratic Republic of the Congo once the reason for his presence on its premises has ceased to exist. There is thus no legal vacuum.
The Dutch courts have now followed this approach, as they are required to do by the Dutch constitution. Today, the Court of Appeals in The Hague held that three comparable individuals to Mr. Longa - defence witnesses detained by the ICC who asked for asylum in the Netherlands - are not being held unlawfully, but are rather being held pursuant to art. 93(7) Rome Statute, even though their testimony is already over. (Cf. par. 2.5, here.)
While I understand where the ECtHR is coming from, I find this result fundamentally problematic. This has to do with a sense of conservatism, but it is also a corollary of my rather drastic formalism when it comes to law generally and international law in particular. Let me explain each in turn.
From a vague sense of conservatism, I think it is important to protect The Great Writ. I know it is an English thing, and I know that it is not really under attack here, but I still don't like the proposition that "the fact that the applicant is deprived of his liberty on Netherlands soil does not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands". Wherever else the Writ might run, it should at least run to every square centimetre of the Kingdom in Europe. The ICC Detention Centre is not so much a Centre as it is 12 cells in the former "Orange Hotel" in Scheveningen, under the same roof as the prisoners of the ICTY and as any number of ordinary Dutch prisoners. All of them should, ultimately, be able to ask a Dutch court to review the lawfulness of their detention.
This does not mean, of course, that the Dutch court then has to examine the issue exhaustively, i.e. de novo. It would be perfectly fine for the Court to defer to the decision of the Trial Chamber of the ICC, unless there is a good reason not to. In this case, the ultimate answer is fine: the detainees are held on the basis of art. 93(7). The ICC's Trial Chamber decided that this provision is still the legal basis even after the trial, during the period that the witnesses are waiting for the conclusion of their asylum proceedings, given the fact that they were being detained in Congo in the first place, before being sent to The Hague. This judgement is not unreasonable, so there is no violation of art. 5 (or 13) ECHR. Easy enough.
Ultimately, the reason why I find it important to take this extra step, illusory as it might be in the vast majority of cases, is that I am worried about cases like Kadi.
In Kadi, the Grand Chamber of the European Court of Justice, through the mouth of the Dutch Judge Timmermans, pretended that it had the authority to let human rights trump the obligation of the European Union to comply with UN law without ever explaining where that authority came from. Being quite formalist about such things, I prefer the approach of the General Court, which held that it did not have the right to carry out judicial review of the UN Security Council resolution in question, or of the EU's implementing legislation, except to the extent that a violation of ius cogens was alleged. (Cf. also this post about the Dutch Srebrenica litigation.) In general, the rule is that "in the event of a conflict between the obligations of the Members of the United Nations under the (...) Charter and their obligations under any other international agreement, their obligations under the (...) Charter [should] prevail", and that includes obligations that flow from the EU Treaties, which are still international agreements, and obligations that flow from the European Convention on Human Rights. (Cf. also the ECtHR's Nada case.)
The problem with this approach is that it leaves Mr. Kadi up the creek without a paddle. He can't get judicial review in Sweden, because the Swedish courts are bound by directly effective EU law, which trumps even the Swedish constitution. He can't get judicial review in Luxembourg, because UN law goes above EU law. And finally, he can't get judicial review at the UN level, because the ICJ does not allow private citizens to bring a case, and no other review body is available. It is this conundrum that caused the ECJ to make up a remedy out of whole cloth.
Personally, I prefer to see such creativity at the level of maximum legitimacy, which is to say at the level of the state. In my view, that is what sets the state apart from all other levels of government: The state is the ultimate guarantor of the compliance of all the other levels with the most basic aspects of Rechtsstaat. When the normal rules of law threaten to create a legal vacuum, it is at the level of the state that a solution must be found. Normally, that solution will involve a deliberate breach of international law by the state. (As a general matter, a state cannot plead domestic legal rules as an excuse for a failure to comply with international law.)
There is ample precedent for this approach, most famously the German Constitutional Court's Solange-I ruling, where the Court said:
in the hypothetical case of a conflict between Community law and a part of national constitutional law or, more precisely, of the guarantees of fundamental rights in the Basic Law, there arises the question of which system of law takes precedence, that is, ousts the other. In this conflict of norms, the guarantee of fundamental rights in the Basic Law prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.(Translation courtesy of the Institute for Transnational law at the University of Texas at Austin.)
In some countries, such as the Netherlands, this is a result that is difficult to achieve. Under Dutch law, international law has direct effect even when it contradicts the constitution. (Treaties that contradict the constitution simply have to be ratified with a supermajority.) However, this means there is all the more reason to create some freedom of manoeuvre in this regard. Dutch courts should avoid saying anything that permanently rules out the use of the Ultimate Guarantor power. After all, all those who are present in the Kingdom in Europe should be able to rely on the Dutch courts to protect them if no one else will.