In this week’s review, news about the Gaddafi appeal on admissibility; calls for new tribunal on ISIS crimes; and prospects of justice in Myanmar for Rohingya crimes
Defence for Saif Al-Islam Gaddafi files appeal brief against PTC’s decision dismissing its admissibility challenge
On 20 May 2019, the full brief of the Defence in the case of Saif Al-Islam Gaddafi was filed with the ICC Appeals Chamber following the notice of appeal of 11 April 2019. The appeal challenges the Pre-Trial Chamber’s (PTC) decision of 5 April 2019, in which the majority rejected the Admissibility challenge based on the principle ne bis in idem lodged by the Defence since Mr Gaddafi has been tried and convicted on 28 July 2015 by the Tripoli Criminal Court. It was held that a judgment which acquired a res judicata effect is required for the ne bis in idem principle to attach for purposes of an admissibility challenge and the judgment by the Tripoli Criminal Court did not constitute a “final decision on the merits” and was therefore “[in]sufficient for satisfying Articles 17(1)(c) and 20(3) of the Statute”.
The grounds of the Defence’s Appeal of that decision as set out in the appeal brief are first, that the PTC “erred in law in holding that Articles 17(1)(c) and 20(3) of the Statute may only be satisfied where a judgment on the merits of a case has acquired res judicata effect” and second, that the PTC “erred in law and fact, and procedurally, by failing to determine that Law No. 6 of 2015 [ on General Amnesty] was applied to Mr Gaddafi and that such application rendered his conviction final.” With respect to the first ground, the Defence requests that the Appeals Chamber reverse this error of law and determine that under the complementarity framework of the Rome Statute the language “tried by another court” in Article 20(3) of the Statute is satisfied where domestic trial proceedings have concluded with a verdict on the merits. With respect to the second ground, the Defence requests that the Appeals Chamber find that element (i) of the four step ne bis in idem evaluation (that Mr Gaddafi has already been tried by the Libyan national courts) is satisfied, or, in the alternative, to remand this matter to the Pre-Trial Chamber to further consider and issue a new determination on element (i) in line with the Appeals Chamber’s directions. (ICC AC Defence Appeal Brief)
Sweden and the Netherlands call for an international tribunal to prosecute ISIL fighters
In the wake of growing support for establishing an ad-hoc international tribunal to prosecute ISIL fighters in Syria and Iraq, Sweden has announced that it will hold a meeting on 3 June 2019 in Stockholm. A number of countries, including Great Britain, France, the Netherlands, and Belgium will attend the meeting. The countries discuss the principles of setting up the tribunal including its seat and the type of crimes which will be prosecuted. The common agreement suggests that the tribunal would be seated in a Middle Eastern country, but not Syria. None of the attending countries are willing to cooperate with Bashar al Assad in this matter. The proximity of the tribunal to the affected countries should secure expeditious investigations and strengthen its legitimacy among the population, especially the potential victims. In the speech before the UN Security Council, the Dutch foreign minister Stef Block stated: “…in September, the Netherlands will initiate a ministerial meeting on the prosecution of ISIS fighters.” The Netherlands agreed to join Sweden in its efforts due to a number of Dutch citizens joining ISIL. Currently, it is reported that around 300 Dutch nationals traveled to the former ISIL caliphate, some of whom have returned back. Some of the Dutch citizens are in ISIL controlled prison. (Rudaw, Government of the Netherlands, Dutch News)
Myanmar releases soldiers convicted of Rohingya massacre
Seven soldiers jailed in Myanmar for killing 10 Rohingya Muslim men and boys were reportedly released in November 2018, less than one year into their 10-year sentence. The soldiers were convicted of being involved in executions in the village of Inn Din in western Rakhine State after an investigation by Reuters journalists. The seven soldiers were subsequently convicted and sentenced in April 2018. The journalists who exposed the massacre, Wa Lone and Kyaw Soe Oo, were sentenced to seven years in prison for their reporting. While Myanmar is not a party to the Rome Statute, the Office of the Prosecutor at the International Criminal Court opened a preliminary examination into the situation in Myanmar in September 2018, following a ruling by the Pre-Trial Chamber that the crime of deportation may fall within the court’s jurisdiction because part of the acts took place in neighbouring Bangladesh. (BBC)
Amnesty International report on alleged war crimes in Myanmar’s Rakhine state
In its latest report titled “No one can protect us”, Amnesty International has implicated the Myanmar military in committing further war crimes in Rakhine state against the Rohingya. The situation in the region escalated after the rebel Arakan Army clashed with the military, killing 13 police officers. The government reportedly ordered that the opposition be crushed. Besides the Western Command militia which has already been accused of serious human rights violations in 2017, civilians additionally identified soldiers belonging to the Myanmar Army’s 22nd and 55th Light Infantry Divisions as the perpetrators of the crimes. According to the report, the latest conflict led to the displacement of more than 30,000 Rohingya. Witnesses reported growing instances of unlawful attacks, extrajudicial killings, using mortars to destroy the houses in the villages and arbitrarily shooting civilians from helicopters. Amnesty’s investigations uncovered cases of arbitrary detention and torture, predominantly of men of “fighting age.”
The army’s strategy to cut the rebels from access to food and water had a severe effect on the population, including forced labour among the villagers. The government allegedly filed a number of criminal complaints against the editors of three local Myanmar-language newspapers, seemingly to silence critics. Amnesty called upon the UN Security Council to refer the current situation in Myanmar to the ICC and impose sanctions on the senior officials. Amnesty expressed its dismay with the continued impunity and the lack of accountability of the alleged perpetrators, calling it “a systemic, institutionalised problem.” Recently, seven soldiers accused of the 2017 killings were granted early release from their sentences. On 6 September 2018, the Pre-Trial Chamber found by a majority that the court has jurisdiction over the deportation of Rohingyas from Myanmar to Bangladesh. In the same month, the ICC Prosecutor decided to open the preliminary examination into the alleged deportation of the Rohingya people from Myanmar to Bangladesh. (Amnesty International, Aljazeera)
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