ICL Media Review: Argentinian Prosecutors to consider claim against Mohammed Bin Salman over alleged war crimes in Yemen and Khashoggi’s murder
In this week's review, news about MICT request concerning the treatment of convicts in Estonia, compensation for Holocaust survivors, submissions in Turinabo contempt case, Argentinian court considers war crimes charges against Saudi Crown Prince over Yemen, and more
Argentinian Prosecutors to consider claim against Mohammed Bin Salman over alleged war crimes in Yemen and Khashoggi’s murder
In light of a planned visit of the Saudi Crown Prince to Buenos Aires, Human Rights Watch (HRW) has requested an Argentinian federal judge to investigate whether Mohammed bin Salman can be prosecuted for his alleged role in possible war crimes committed in Yemen since 2015 and the murder of journalist Jamal Khashoggi. Mohammed bin Salman is scheduled to attend the G20 summit in Buenos Aires on 30 November and 1 December 2018. HRW referred to the principle of universal jurisdiction enshrined in the national constitution as the basis for its request. The principle of universal jurisdiction allows the court of any state to try persons for crimes committed outside its territory. The Argentinian federal prosecutor has been seised of the HRW request. HRW claim that the Saudi-led coalition carried out indiscriminate air strikes against civilians, targeted hospitals, schools and mosques in Yemen and that the blockade they imposed led to the mass starvation of over 14 million civilians, including approximately 85,000 children. HRW states the actions allegedly committed by the Coalition since 2015 indicate possible war crimes. Even though some sources claim that the Crown Prince’s diplomatic immunity means the case is unlikely to proceed, the judicial and state authorities have yet to issue a definitive statement. Furthermore, it is unclear whether the murder of Jamal Khashoggi would qualify as a crime against human rights. This may prevent the Argentinian authorities from investigating the case. (The Guardian, Aljazeera)
MICT Requests Information re Treatment of Serb War Criminals in Estonian Prisons
The MICT has asked Estonian authorities for information regarding complaints that two Serbians convicted of war crimes have been mistreated in Estonia. The Serbian Justice Ministry has raised concerns that the detainees are unable to exercise their legal rights and lack adequate health care and acceptable living conditions. The president of the MICT will consider options after the Secretary has filed their report. Martic is serving a 35-year sentence for crimes including murder, persecution, imprisonment, deportations and attacks on civilians. Milosevic is serving a 29-year sentence for killing civilians in the siege of Sarajevo. The Serbian Justice Ministry has previously requested the detainees be transferred to a third country, and Serbian Prime Minister Anna Brnabic has recently requested that they be permitted to serve their sentences in Serbia. The MICT president has said that the transfer of the detainees to Serbia could only be approved by the UN Security Council, and that transfer to a third country would only be approved if threats to the rights of the detainees could not be rectified by cooperation with local authorities. (Balkan Insight)
Dutch rail firm to pay compensation to Holocaust survivors and their relatives
The Dutch rail service, Nationale Spoorwegen (the NS), has agreed to pay an estimated EUR 2.5 million in compensation to victims and relatives of Holocaust survivors. Its decision to “learn, honour and remember in an enduring way” comes after the campaign of a survivor whose parents died in Auschwitz. The NS apologised for its role in transporting Jews and Roma to a transit Nazi camp in Westerbork, from where they were transported to Auschwitz and Sobibor. Its is estimated only around 5,000 people out of the 107,000 who were taken to Westerbork survived the concentration camps. As part of its apology, the NS previously contributed to the renovation of the museum at Westerbork. Westerbork served as a Nazi transit camp from 1941 and the last train departed on 13 September 1944. The role of the NS was not only to run the trains, but also to receive money from Germany to comply with the orders to make the trains available at the timetable set by the NS itself. In 2010, the French SNCF also compensated the victims and relatives of over 76,000 French Jews who were transported to the Nazi camps. (BBC)
Further submissions requested on suitability of transfer for contempt case to Rwanda, and status conference scheduled
On 7 November 2018, Vagn Joesen, the Single Judge in the Turinabo et al case at the International Residual Mechanism for Criminal Tribunals (MICT), issued an order to schedule a status conference on 13 December in the Arusha Branch of the Mechanism. On 15 November 2018, the Defence for one of the five accused, Mr Nzabonimpa, filed a request seeking leave to provide further submissions on the transfer of the case from the MICT to the Rwandan courts. The Defence for Mr Nzabonimpa asked Judge Joesen to declare that the case was not suitable for transfer back to Rwanda in accordance with Article 1(4) and Article 6 of the MICT Statute. They argued that the Prosecution had unconvincingly attempted to extricate itself from its burden of persuading the Chamber that the case can be transferred to Rwanda.
They based this on the argument that the Rwandan legal framework was not adequate, as according to its own legal characterisation of alleged conduct, Rwandan authorities would only be able to proceed on the bribery allegations against Mr Nzabonimpa leaving out 90% of the conduct allegedly attributable to Mr Nzabonimpa. Additionally, they argued that the Prosecution’s argument that an objective approach to Rwanda’s undertaking regarding its willingness to accept the case against the accused would unfairly subject Rwanda to “a higher level of scrutiny and proof than other referral states” was not supported. They further submitted that the case did not fulfil Article 6(4) criteria as Mr Nzabonimpa would not receive a fair trial in Rwanda and the revocation and monitoring framework was not a substitute for fair trial rights.
Recently, the Parties in this case had made full submissions on the issue of suitability of transferring the case to Rwandan courts. Submissions were received from the Rwandan Government (2 October 2018), the Prosecution (9 October 2018) and from the Defence teams of each of the five accused (24 & 29 October 2018). The Rwandan Government noted that although Rwanda has the jurisdiction and the will to prosecute the Turinabo contempt case, the interests of justice would be better served by the case remaining at MICT. The Prosecution argued that the Single Judge could exercise discretion to transfer the case as the requirements under Article 6(2) of the Statute were met. They further argued that a transfer would serve the interests of justice as the case would be tried closer to those affected and would be heard more expediently. All five accused, who are charged under Rule 90 of the MICT with having participated in a joint criminal enterprise through witness interference, submitted that the case should not be transferred to Rwanda. They argued that justice would be better served by the case remaining at the MICT, witnesses could be placed at risk, the Rwandan government does not have jurisdiction to hear the case (as it is a contempt case) and a trial in Rwanda would compromise the fair trial rights of the accused. (MICT Order, Request)
OTP request leave to appeal PTC decision ordering second reconsideration on Gaza Freedom Flotilla case
On 21 November 2018, the Office of the Prosecutor requested leave to appeal the PTC’s decision ordering further reconsideration of the Gaza Freedom Flotilla case. The Prosecutor noted three main issues in her appeal. First, whether the PTC may entertain and rule upon the merits of further request for reconsideration, once the Prosecutor has formally notified the PTC of her final decision not to initiate an investigation. Second, whether and under what circumstances the PTC may set aside the reasons of the Prosecutor not to initiate an investigation. And third, whether the Prosecutor is obliged to accept particular conclusions made by the PTC in their request, or whether she may she may continue to draw on her own conclusions. These issues, the OTP argues, go against the fair and expeditious conduct of proceedings. On 15 November 2018, the majority of the PTC granted the Comoros’ request, in part, to set aside the Prosecutors Final Decision, and requested the Prosecutor further her original report on the matter by 15 May 2018. (OTP Leave to Appeal).
Former Guatemalan soldier sentenced for massacre
A Guatemalan Court has sentenced Santos López Alonzo, 66, to over 5000 years imprisonment for his role in a massacre during the country’s civil war. The sentence includes 30 years for crimes against humanity and an additional 30 years for each of the 171 victims of the massacre. Prosecutors alleged that Mr Alonzo was part of a Special Patrol during the 1980s that raped and murdered residents of a village while searching for guerrilla fighters. This occurred during the regime of Efraín Ríos Montt, who was himself convicted of genocide and crimes against humanity. Despite the lengthy sentence delivered by the court, the most time a prisoner can serve in Guatemala is 50 years. (New York Times)
Alleged SS guard charged with 36,000 counts of accessory to murder
An alleged former SS guard has been charged by German prosecutors with over 36,000 counts of accessory to murder for his role at Mauthausen concentration camp in Northern Austria between 1944 and 1945. It is alleged that his service as a guard “aided or at least made easier” the killing of 36,223 people at Mauthausen, by methods such as gassing, lethal injection, shootings, starvation and exposure. Recent jurisprudence in German courts has held that former Nazi camp guards can be charged with accessory to murder even if there is no evidence they participated in a specific killing. A similar case recently began against a former SS guard at the Nazi’s Stutthof camp in Poland concerning hundreds of charges of accessory to murder. (CBS News)
Female Serb Soldier Convicted of War Crime Over Torture and Murder of Bosnian Army Nurse
Former Serbian soldier Ranka Tomic was sentenced to five years in prison by the Belgrade Higher Court for her involvement in the murder of a Bosnian army nurse during the Bosnian war. Tomic is accused of humiliating the nurse, beating her and forcing her to dig her own grave before having her executed. The prosecution initially asked for a seven-year sentence, and this first-instance verdict may be appealed. (Balkan Insight)
Photos:U.S. Department of State
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