Uitspraak Nº 2200550317v. Gerechtshof Den Haag, 2022-06-08

• ECLI: ECLI:NL:GHDHA:2022:1674
• Docket Number: 2200550317v
• Date: 08 June 2022
• Court: Gerechtshof Den Haag (Nederland)
• Issuer: Gerechtshof Den Haag (Nederland)

Cause list number: 22-005503-17

Public Prosecutor’s Office number: 09-748013-12

Date of judgment: 8 June 2022

JUDGMENT AFTER TRIAL

Court of Appeal, The Hague

joint bench for criminal proceedings

Judgment

rendered in the appeal against the decision of the District Court of The Hague of 15 December 2017 in the criminal case against the accused:

[name of the accused],

born in [place of birth] (Syria) on

[date of birth] 1954,

currently detained at the Krimpen aan den IJssel prison facility in Krimpen aan den IJssel.

Investigation name: Merens

Table of contents

1. List of abbreviations used p. 4

2. Some preliminary remarks p. 5

3. Charges p. 5

4. Procedure p. 6

5. Request by the Advocates General p. 7

6. Jurisdiction and competence p. 7

7. Partial inadmissibility on appeal p. 7

8. Decision appealed against p. 8

9. Criminal investigation p. 8

10. Admissibility of the Public

Prosecution Service in the prosecution p. 10

10.1 Defence

10.2 Establishment of the facts and

circumstances

10.3 Opinion of the Court of Appeal

10.4 Conclusion

11. Applicable law p. 23

11.1 Articles 8 (old) and 9 (old) of the

Wartime Offences Act

11.2 The term ‘laws and customs

of war’

11.3 The requirements for war crimes

12. Valuation of the evidence p. 29

12.1 The witness statements

12.2 Conditional witness requests

from the defence

12.3 The documents from Ethiopia

12.4 Requests for further examination

of the documents from Ethiopia

12.5 The report of expert Abbink

12.6 Fair trial

13. Assessment of the charges p. 45

13.1 The existence and nature of the p. 45

conflict

13.1.1 Armed conflict

13.1.2 Relevant developments in

Ethiopia from 1974 onward

13.1.3 Parties to the conflict

13.1.4 Armed struggle

13.2 The role and position of the accused p. 56

13.3 Establishment of the facts p. 61

13.3.1 Establishment of the

actual events

13.3.2 Names of (proven) persons

13.3.3 Partial acquittal in respect of

some persons

13.3.4 Partial acquittal with regard to the period in which offence 4 was committed

13.4 Protected persons p. 75

13.5 Violations of international p. 75

humanitarian law

13.5.1 Assessment framework

13.5.2 Violations of international

humanitarian law in this case

13.6 Involvement and role of the accused

in the acts charged p. 89

13.6.1 Assessment of the actual role of the accused

13.6.2 Legal qualification of the

role of the accused

13.7 Nexus p. 99

14. Conclusion p. 101

15. Declaration of charges proven p. 102

16. Criminal nature of the

facts proven p. 103

17. Criminal liability of the accused p. 104

18. Grounds for the sentence p. 104

19. Claims for damages p. 108

20. Applicable legal provisions p. 112

21. Judgment p. 113

Annexes

1. Indictment p. 116

2. Declaration of charges proven p. 181

3. Endnotes p. 200

1 List of abbreviations used

AP I-IIA Additional Protocol I or II to the Geneva Convention 1949

DLR Dienst Landelijke Recherche (National Investigation Service)

EDU Ethiopian Democratic Union

ELF Eritrean Liberation Front

EPLF Eritrean People’s Liberation Front

EPRP Ethiopian People’s Revolutionary Party

EPRA Ethiopian People’s Revolutionary Army

ECHREuropean Convention for the Protection of Human Rights and Fundamental Freedoms

GC I-IV Geneva Convention of 1949 I up to and including IV

ICC International Criminal Court

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

Meison All Ethiopian Socialist Movement

PMAC Provisional Military Administrative Council

SPO Special Prosecutor’s Office

CC Criminal Code

CCP Code of Criminal Procedure

TIM International Crimes Team

TPLF Tigray People’s Liberation Front

WIMWet Internationale Misdrijven (International Crimes Act)

WOS Wet Oorlogsstrafrecht (War Crimes Act)

2 Some remarks in advance

This war crimes case concerns events in the 1970s in Ethiopia. The localities of Debre Marcos and Metekel appear in the indictment and were both localities in the then Gojjam province of Ethiopia.

In Ethiopia, events are recorded according to the Coptic calendar. The dates mentioned in this judgment are, unless otherwise indicated, dates according to the western, Gregorian calendar. Where applicable, a conversion has been performed.

In this judgment, the Court of Appeal will discuss, among other things, the political and historical backgrounds of the situation in Ethiopia at the time. The Court of Appeal will also base its judgment on sources that are publicly available and are included as written documents in the criminal file. Evidence is mentioned in footnotes, other sources in endnotes.

3 Charges

The accused is on trial on suspicion of involvement in war crimes, committed in Ethiopia in the period from 1 February 1978 up to and including 31 December 1981. These offences have been described in the indictment amended in the first instance, incorporated in this judgment as Annex 1.

The accusations invariably involve violations in various forms of Article 8 (old) of the Wet Oorlogsstrafrecht (War Crimes Act) (hereinafter WOS), and are - in brief - as follows:

Count 1: Deprivation of liberty and inhuman treatment in the period from 1 February 1978 up to and including 31 July 1978. The accused is alleged to have arbitrarily deprived 321 persons of their liberty in Debre Marcos and/or Metekel, to have treated them cruelly and inhumanly, to have committed attacks upon their personal dignity and to have pronounced judgments against them without prior trial by an independent court. This Count is charged as co-perpetration, intentional acceptance as a superior, and as aiding and abetting.

Count 2: Torture in the period from 1 February 1978 up to and including 1 September 1978. The accused is alleged to have tortured nine people in captivity in Debre Marcos and/or Metekel. Also this Count is charged as co-perpetration, intentional acceptance as a superior, and as aiding and abetting.

Count 3: The killing of 75 persons in the period from 14 August 1978 up to and including 17 August 1978. The accused is alleged to have given orders to kill 75 persons who were in prison in Debre Marcos and/or Metekel. This Count is charged as co-perpetration and as instigation.

Count 4: The same allegation as under Count 1, but with regard to 240 persons in the period from 1 August 1978 up to and including 31 December 1981. This Count is charged as co-perpetration, instigation, intentional acceptance as a superior, and as aiding and abetting.

Co-perpetration, aiding and abetting, instigation and/or intentional acceptance as a superior is herewith invariably charged cumulatively/alternatively, i.e. as an and/or variant.

4 Procedure

In the first instance, the accused was acquitted of:

• -

  The charges under Count 1 of intentional acceptance as a superior, and aiding and abetting;

• -

  The charges under Count 2 of co-perpetration, and aiding and abetting;

The charges under Count 4 of intentional acceptance as a superior, and aiding and abetting;

The accused was convicted in the first instance of:

• -

  Co-perpetration of the charges under Count 1;

• -

  Intentional acceptance as a superior of the charges under Count 2;

• -

  Co-perpetration and instigation of the charges under Count 3;

• -

  Co-perpetration of the charges under Count 4.

The accused was sentenced by the District Court to life imprisonment.

Furthermore, the District Court made decisions on the claims from the injured parties, as described in the decision appealed against.

An appeal was lodged against the decision on behalf of the accused and by the Public Prosecutor.

5 Request by the Advocates General

The Advocates General have requested that the decision appealed against be set aside and that the accused be sentenced in respect of the charges under Count 1 first cumulative/alternative (co-perpetration), Count 2 first cumulative/alternative (co-perpetration), Count 3 first and second cumulative/alternative (co-perpetration and instigation), and Count 4 first cumulative/alternative (co-perpetration) to life imprisonment.

6 Jurisdiction and competence

The indictment refers to offences committed outside the Netherlands, against non-Dutch victims by an accused who did not have Dutch nationality at the time. The Court of Appeal has examined whether the Dutch court has jurisdiction.

Article 3 (old) of the WOS stipulated at the time of the indictment that this Act is applicable to anyone who is guilty of an offence described in Articles 8 and 9 of the WOS outside the realm in Europe. The accused has been charged with these offences. The Dutch court therefore has jurisdiction.1

Pursuant to Article 15 of the Wet Internationale Misdrijven (International Crimes Act) (hereinafter WIM), the Court of Appeal of The Hague is the only court competent to hear international crimes as charged against the accused. This Court of Appeal, adjudicating on appeal, therefore has jurisdiction.

7 Partial inadmissibility on appeal

The appeal has been lodged by the Public Prosecutor and on behalf of the accused without limitation and therefore also directed against the decision rendered in the first instance to acquit the accused of the charges under Count 2 insofar as they relate to the persons [person 329] and [person 330], and the charges under Count 4 insofar as they relate to [person 325], [person 319], and [person 320].

At the appeal hearing, the Advocates General stated that the objections...