Shared responsibility in international criminal justice: the ICC and asylum

As a tribute to Bert Swart's academic career, this article explores the shared responsibility of states and the International Criminal Court (ICC) for witnesses who have testified at the ICC and have raised concerns for their well-being and safety in case of return to the sending state. The new phenomenon of ICC witnesses — more specifically, witnesses detained in the ICC detention centre — who have applied for asylum in the host state, raises the question of allocation of responsibility and jurisdiction between the ICC and the host state. It will be argued that without an ICC ‘territory’ it is only natural that ICC states parties, especially the host state, should perform those tasks of the ICC for which a territory is needed. This position is confirmed by the Dutch national asylum court, which ruled that ICC witnesses can apply for asylum in the Netherlands, in the same way as any other foreigner present on Dutch territory.