In this week’s review, submissions to the MICT on the suitability of hearing the #Turinabo trail to The Hague, UN Fact-Finding Mission on genocide in Myanmar, IACHR and the migrant caravan, Karadzic submissions on disqualification petitions and more
Burundi extends the mandate of the Truth and Reconciliation Commission to cover crimes committed since 1885
On 29 October, the Burundian Parliament passed a law which extended the mandate of Burundi’s Truth and Reconciliation Commission (TRC) to cover the period starting from 1885, the year of the Berlin Conference. Established in 2014, the TRC was set up to probe serious violations of human rights and international humanitarian law initially from 1962, year of the country’s independence, until 2008, when the ceasefire was signed with the last rebel group. The new law expands the time-frame that the TRC is supposed to investigate to the year of the Berlin Conference on the partition of Africa, which ushered the era of European colonialism in the continent. With this move, the parliament has underscored the role played by colonial powers such as Germany and Belgium in exacerbating the ethnic tensions and the violence that the marred the country for decades. The law also extended the mandate of the TRC, which was coming to an end in December 2018, for an extra four years. The move was criticised by the opposition and civil society, who accuse the TRC of reflecting the will of the ruling party, and point to the lack the resources necessary to cover such an extensive mandate. (TV5Monde)
UN MICT receives submissions and responses on the suitability of transferring Turinabo et al case to Rwanda courts
Parties to the Turinabo et al case before the UN International Residual Mechanism for International Tribunals have made submissions concerning the question of whether the case should be transferred to the courts of Rwanda, and whether this option would be suitable in this case. They were filed by the parties after the Single Judge ordered submissions on this question on 18 September 2018. Submissions were received from the Government of Rwanda, the Prosecution and from the defence teams of each of the five accused.
The response from the Government of Rwanda, submitted on 2 October, 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 the IRMCT. The Government explained that the substantive case which gave rise to the contempt case is being handled by the IRMCT, and argued that the offence has a closer connection to the IRMCT than to the Rwandan Courts. Rwanda’s submissions were followed by those of the Prosecutoron 9 October. The Prosecution argued that the Single Judge could exercise discretion to transfer the case as the requirements under article 6(2) of the statute are met. Further, the transfer would serve the interests of justice as the case would be tried closer to those affected and would be heard more expediently.
On 24 October, several defendants submitted their responses. The defence team for Anselme Nzabonimpa submitted that the Rwandan Government does not have jurisdiction, is not sufficiently willing or adequately prepared to accept the case and could not guarantee a fair trial. Further, a referral would not be in the interests of justice or expediency. The defence for Jean de Dieu Ndagijmana submitted that the default position is for article 1(4) cases to be heard by the IRMCT. The defence countered the Prosecution’s claims that a trial in Rwanda could serve the interests of justice and expediency, and agreed with the Rwandan Government’s position that justice would be better served by the case remaining at the IRMCT, adding that this admission indicates the Government is not truly willing and adequately prepared to accept the case.
The defence for Dick Prudence Munyeshuli filed submissions that agreed with the Government of Rwanda that the IRMCT was better placed to try the case. It disagreed with the Prosecution’s submission that the interests of justice and expediency could be served by a trial in Rwanda, because of the recognised breaches of due process and fair trial rights that have occurred in Rwandan courts. The defence for Maximilien Turinabo submitted that the case should not be referred to Rwanda because, inter alia, the Rwandan Government believes the case would be better heard by the IRMCT, fair trial standards in Rwanda are unsatisfactory, witnesses could be placed at risk and it would be against the interests of expediency. Last, on 29 October, counsel for Marie Rose Fatuma submitted that the case should not be referred to Rwanda because a referral would not serve the interests of justice or expediency, the government of Rwanda 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.
The five accused are charged under Rule 90 of the MICT with having participated in a joint criminal enterprise, which sought to overturn Augustin Ngirabatware’s final conviction for genocide, through witness interference.(Government of Rwanda Submissions, Prosecution Submissions, Nzabonimpa Submissions, Jean de Dieu Ndagijmana Submissions, Dick Prudence Munyeshuli Submissions, Fatuma Submissions, Turinabo Submissions)
UN fact-finding mission in Myanmar says genocide against Rohingya ongoing
On 24 October 2018, the chair of the UN fact-finding mission on Myanmar, Marzuki Darusman, told a news conference that not only were thousands of Rohingya Muslims still fleeing to Bangladesh, but the estimated 250,000 to 400,000 who remained following the brutal military campaign of 2017 are facing an “ongoing genocide” and “continue to suffer the most severe” restrictions and repression. The UN special investigator on human rights in Myanmar, Yanghee Lee, also stated that she and others in the international community thought that Aung San Suu Kyi’s government was in denial about the accusations that the military raped, murdered and tortured Rohingya and burned their villages, sending about 700,000 fleeing to Bangladesh since last August. The government of Myanmar has rejected international investigations and rejected the report by the fact-finding mission led by Darusman which found that some top military leaders should be prosecuted for war crimes, crimes against humanity and genocide against the Rohingya. Although any action appears highly unlikely because of likely opposition from China, which holds a veto power, Darusman urged the UN Security Council to take action to hold those who had carried out atrocities against the Rohingya accountable, either by referring Myanmar to the International Criminal Court or by setting up an international tribunal. (The Guardian)
IACHR expresses concern for human rights of ‘migrant caravan’; urges all States to guarantee rights
The Inter-American Commission on Human Rights (IACHR) expressed its concern over the human rights violations and abuses faced by persons on the ‘Migrant Caravan’ marching from Honduras. Specifically, the IACHR urged “the States concerned to adopt measures to guarantee the human rights of these individuals—in particular the right of persons in need of international protection to request and receive asylum—and to strengthen mechanisms of shared responsibility to address the situation of persons that have been forced to migrate.” On 13 October 2018, according to information gathered by the IACHR, several hundred people, mostly Hondurans, began to journey north from the city of San Pedro Sula with plans to travel through Guatemala to Mexico and the United States. More people joined the caravan and multiple sources report that it is currently made up of more than 7,000 individuals – largely families which include people in situations of special vulnerability, such as children, pregnant women, and the elderly – from Honduras, Guatemala, and El Salvador declaring that they have abandoned their countries of origin to escape gang violence and other human rights violations, as well as poverty and a lack of opportunities.
The IACHR observed that the caravan’s journey triggered reactions and hostile measures by some authorities in transit and destination countries including pronouncements to stop the caravan, close borders, and to detain and deport caravan members. In particular, the IACHR expressed concern over and rejected the use of stigmatising and criminalising language as well as unfounded accusations made in reference to migrants and asylum seekers in statements made by United States officials. This is because these statements characterised the caravan as a threat to sovereignty and national security and that the movement of migrants included many criminals, which could encourage xenophobic attitudes against such persons. The IACHR urged transit and destination country authorities to refrain from using force to manage mixed migration movements in order to guarantee respect for the migrants’ and asylum seekers’ rights to life and personal integrity and also urged caravan members not to resort to violent actions and to respect national laws. The IACHR also reaffirmed that, although the states in the region have the right to establish their migratory and international protection policies, these policies, laws, and practices must respect and guarantee the human rights of all migrants and asylum seekers—which are rights and freedoms that derive from human dignity. (Reliefweb)
Karadzic provides submissions on second motion to disqualify judges, and Prosecution requests disqualification of Judge Antonetti
On 24 March 2016, an ICTY Trial Chamber convicted President Karadzic of genocide in Srebrenicia in 1995, war crimes, and crimes against humanity. Karadzic was sentenced to 40 years imprisonment. Before the International Residual Mechanism for Criminal Tribunals, both the Prosection and Karadzic appealed the decision with President Meron, and Judges Sekule, Joensen, de Prada and Gatti to hear the appeal. On 27 September 2018 Judge Meron withdrew from the case for having previously made decisions against Karadzic’s subordinates, replacing himself with Judge Rosa. On 12 October 2018, Karadzic filed, before Senior Judge Antonetti, a second motion to disqualify Judge Meron and a motion to disqualify Judge Sekule. Karadiz contended that the withdrawal Judge Meron had not been fully disposed of as he participated in the case through appointing his own replacement and insisting on the propriety of this decision. Karadzic sought also the disqualification of Judge William Sekule for the appearance of bias resulting from the Judge’s participation in the Popovic et al and Tolimir judgments. In response, on 15 October 2018, the Prosecution filed a motion to strike Karadzic’s motion to disqualify the Judges. Arguing the motion was improperly filed before Judge Antonetti. On 17 October 2018, Judge Antonetti issued an order inviting ordered Karadzic to clarify his position on the disqualification of Judge Meron considering the applicable standard.
The Judge also invited the Prosecution to file a consolidated response to the second motion to disqualify. On 19 October 2018, Karadzic clarified his position that Judge Meron, in declining to withdraw his appointment of the replacement judge did not meet the relief sought by Karadzic’s motion, and that reconsideration is necessary in order to avoid an injustice. On 25 October 2018, the Prosecution filed before Judge Meron a motion to disqualify Judge Antonetti, arguing Judge Antonetti has no jurisdiction over the motions to disqualify Judges Meron and Sekule. The Prosecution argued that Judge Antonetti held actual bias or at least there was an apprehension of bias. This was due to Judge Antonetti’s person interest in cementing the novel disqualification standard stemming from the Mladic case (the Antonetti Test). Also on 25 October, Karadzic responded to the Appeals Chamber arguing Senior Judge Antonetti was properly seised of the Second Motion and should be left to decide it on the merits, and that the Prosecution’s Motion to Strike should be dismissed. (UN MICT Documents Library)
Germany charges former Afghan army officer with war crimes
Germany has charged a former Afghan army officer with war crimes relating to his treatment of prisoners in his care. The 26-year-old former officer is alleged to have acted with two others to abuse three different prisoners. It is currently unclear when the crimes are alleged to have occurred. (Washington Post)
The Gambia allows citizens and NGOs to file claims with AfCHPR
On 24 October, The Gambia announced that it was acceding to a declaration allowing its citizens and NGOs to file cases directly with the African Court on Human and People’s Rights (AfCHPR). The announcement was made in Banjul during the 63rd session of the of the African Commission on Human and People’s Rights. The court was originally established in 1998 by the African Union, to determine cases concerning the violation of human and people’s rights in Africa, and The Gambia is now one of eight African states that has granted its citizens direct access to the court. (The Citizen)
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