Uitspraak Nº 2200550317v. Gerechtshof Den Haag, 2022-06-08
Court | Gerechtshof Den Haag (Nederland) |
ECLI | ECLI:NL:GHDHA:2022:1674 |
Date | 08 Junio 2022 |
Docket Number | 2200550317v |
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
-
Indictment p. 116
-
Declaration of charges proven p. 181
-
Endnotes p. 200
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
ECHR European 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
WIM Wet Internationale Misdrijven (International Crimes Act)
WOS Wet Oorlogsstrafrecht (War Crimes Act)
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.
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.
In the first instance, the accused was acquitted of:
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The charges under Count 1 of intentional acceptance as a superior, and aiding and abetting;
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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:
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Co-perpetration of the charges under Count 1;
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Intentional acceptance as a superior of the charges under Count 2;
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Co-perpetration and instigation of the charges under Count 3;
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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.
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.
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.
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...
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