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26 October 2020 – Kabuga transferred to The Hague, and Gambia makes full submissions in ICJ genocide case against Myanmar

ICTY Building. Photo: Roman Boed via Flickr (CC)
MICT building (former ICTY building). Photo: Roman Boed via Flickr (CC)

UN MICT orders transfer of Felicien Kabuga to The Hague: On 26 October, Felicien Kabuga was transferred to the custody of the International Residual Mechanism for Criminal Tribunals  in The Hague.  His arrival in the Netherlands came after the Trial Chamber of the MICT, decided on 21 October to amend the Arrest Warrant and Order for Transfer, order that Kabuga be transferred to the UN Dentention Unit at the Hague Branch of the Mechanism, and invited the President of the Mechanism to modify Kabuga’s conditions of detention to allow for his detention there. Kabuga was subject to an international arrest warrant issued by the Mechanism on 29 April 2013 , which directed that he be transferred to the Arusha Branch of the Mechanism. On  16 May 2020 , French authorities arrested Kabuga in France on the authority of that warrant. Kabuga made a challenge the Mechanism’s jurisdiction to take custody of and transfer him to the Arusha Branch for trial which failed before the Investigating Chamber of the Cour d ‘appel de Paris. Simultaneously, he Mechanism’s Prosecutor, in May 2020, sought the amendment of the Arrest Warrant and Order for Transfer to provide for Kabuga’s transfer to the Hague Branch of the Mechanism. The request was dismissed on the grounds that the Prosecutor failed to sufficiently support the request.

In this case Kabuga submitted that his transfer to the Arusha Branch of the Mechanism would violate his fundamental rights and would be contrary to the interests of justice on the grounds that it would pose considerable risks to his health and safety due to his advanced age and numerous medical conditions that require intensive care and that that his particular circumstances are exacerbated by the COVID-19 global pandemic. In addition, he argued that because his family lives in Europe, his transfer to Arusha would violate his right to family life as reflected in Article 12 of the Universal Declaration of Human Rights and other human rights treaties. Both the Prosecutor and the Registry supported Kabuga’s temporary transfer to the Hague Branch of the
Mechanism to allow the Mechanism to review Kabuga’s medical file and conduct its own assessment as to his fitness to travel to Arusha.
The Judge noted that while the Prosecution’s application had previously been held to be unsupported and premature, there had been a significant shift in the nature and degree of information related to the risks associated with transferring Kabuga to Arusha on a long-haul flight. He found that the implication of the Prosecutor’s and Registry’s evidence to be that a tranfer to the Hague Branch would pose far less risk to Kabuga than transfer to Arusha, and held that there are exceptional circumstances, in particular, current COVID-19 pandemic related protocols, and that it would be in the interests of justice to modify the Arrest Warrant and Order for Transfer and to order that Kabuga be transferred temporarily to the UNDU at the Hague Branch ofthe Mechanism for a detailed medical assessment. (Decision on Motion to amend warrant of arrestPress Release)
International Court of Justice. Photo: U.S. Embassy The Hague via Flickr (CC)
International Court of Justice. Photo: U.S. Embassy The Hague via Flickr (CC)

Gambia files memorial in ICJ case against Myanmar over genocide of Rohingya Muslims: On 23 October 2020, The Gambia filed its full submissions on the merits in the ICJ case against Myanmar over the genocide of Rohingya Muslims.  The memorial filed contains approximately 5,000 pages of supporting materials and is approximately 500 pages in length. The Memorial alleges that Myanmar authorities of continuing to commit human rights violations against the Rohingya even after the provisional measures, confining more than 125,000 Rohingya in over 20 internment camps. It also asks the Court to hold Myanmar responsible for the commission of genocide, immediately cease its wrongful acts, prosecute and punish the perpetrators, pay reparations to the victims, and permit Rohingya refugees who were forced to flee the country to return safely and securely to their homes.

The Gambia first filed its case against Myanmar on 11 November 2019 requesting punishment of those responsible and compensation for victims, as well as requesting provisional measures to protect the Rohingya and avoid destruction of evidence pending the final judgment of the. On 23 January 2020, the ICJ unanimously granted those provisional measures ordering Myanmar to take steps to prevent the commission of genocide against the Rohingya Muslims and to report on its compliance with the Order periodically. (The Daily Star, Anadolu Agency)
Post by: Portia Karegeya

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