OUP Reference: ILDC 797 (NL 2007)

Oxford Reports on International Law in Domestic Courts Public Prosecutor v F, First instance, Criminal procedure, LJN: BA9575, 09/750001 06; ILDC 797 (NL 2007) 25 June 2007 Parties: Public Prosecutor F Date of Decision: 25 June 2007 Jurisdiction/Arbitral Institution/Court: Netherlands, District Court The Hague Judges/Arbitrators: Procedural Stage: Poustochkine (Chairman); De Ruiter; Van de Vrede First instance, Criminal procedure OUP Reference: ILDC 797 (NL 2007) Subject(s): Human rights International criminal law International humanitarian law Relationship between international and domestic law Keyword(s): Amnesty Armed conflict Armed conflict, non-international Customary international law Human rights, civil and political rights Human rights, principle of legality International crimes International criminal law, command responsibility International humanitarian law, national implementation International humanitarian law, war crimes International law and domestic law, conflicts between Ius in bello Jurisdiction of states, universality principle Responsibility of individuals Torture Core Issue(s) 1. Whether treaty law prohibited the Netherlands from exercising universal jurisdiction over violations of Common Article 3 of the Geneva Conventions. 2. Whether prosecuting a suspect on the basis of Common Article 3 of the Geneva Conventions violated the principle of legality. 3. Whether an Afghan suspect could be prosecuted in the Netherlands for crimes covered by an amnesty law of Afghanistan. 4. Whether international standards were relevant in interpreting superior responsibility in Dutch criminal law. Facts F1 F, a former high-ranking officer of the Afghan Military Intelligence Service Khad-e- Nezami, was charged with being a (co-)perpetrator in committing acts of violence and/or mutilation, and/or cruel and inhuman treatment, and/or torture against two victims in the

mid 1980s (first count), and of bearing superior responsibility for these acts (second count). F2 F argued that Common Article 3 of the Geneva Conventions excluded universal jurisdiction. F referred to the Resolution adopted in Krakow by the 17 th Commission of the Institute of International Law ( Krakow Resolution ), and argued that the Geneva Conventions only provided for universal jurisdiction for grave breaches. F3 F further argued that using Common Article 3 as a basis for the indictment violated the requirements of predictability and accessibility as enshrined in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953 ( European Convention of Human Rights ). F4 Finally, F argued that the amnesty law which had entered into force in Afghanistan constituted a bar to Dutch criminal proceedings in this case. Held H1 Jurisdiction in this case was based on the universality principle, which was applied with great restraint by the Dutch legislature and raised questions of international legal nature since it infringed on the sovereignty of the territorial state. (paragraph 10) H2 Universal jurisdiction existed for violations of Common Article 3 of the Geneva Conventions. H3 Whereas Article 49 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 35, entered into force 21 October 1950 ( First Geneva Convention ), Article 50 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) 75 UNTS 81, entered into force 21 October 1950 ( Second Geneva Convention ), Article 129 of the Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950 ( Third Geneva Convention ), and Article 146 of the Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950 ( Fourth Geneva Convention ) relating to grave breaches obliged state parties to establish criminal jurisdiction, the Geneva Conventions did not include the obligation of penalization as regards internal armed conflicts, but a less far reaching instruction: to take measures in order to discourage these actions. The texts of the Conventions left to states the possibility of starting criminal proceedings as an enforcement method. The Conventions did not prohibit universal jurisdiction in cases of crimes committed in non-international armed conflicts. (paragraph 12) H4 In 1952, the Dutch legislature established universal jurisdiction in Article 3 of the Criminal Law in Wartime Act (Netherlands) ( CLWA ). This provision also applied to violations of Common Article 3 of the Geneva Conventions. In view of Article 94 of the

Constitution, (Netherlands), this provision could not be tested against unwritten international law. There were no written international rules that precluded assuming universal jurisdiction in relation to Common Article 3. (paragraph 13) H5 The armed conflict in Afghanistan in the 1980s was mainly a non-international conflict between the regime in Kabul and the Mujaheddeen that revolted against this regime. Though the Kabul regime was partly supported by Russian advisors, and Russian army divisions participated in the armed conflict, this was not a conflict between two sovereign states. (paragraph 14) H6 The Krakow Resolution, leaving aside the question of whether this was a source of written international law, did not exclude universal jurisdiction for violations of Common Article 3. Nor did the Geneva Conventions contain such a prohibition. (paragraph 16) H7 The argument of the defence that prosecution on the basis of Common Article 3 would violate the principle of legality was rejected. Common Article 3 was an instruction norm. Article 8 of the CLWA set out how it was penalized. As regards the legality principle, torture was described in Common Article 3 as a violation of humanitarian norms. When committed in war, torture was described as a grave breach of the Geneva Conventions, to which Afghanistan was a signatory. Moreover, the prohibition of torture was included in the International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976, to which Afghanistan had been a party since 1983. In this light, the defence could not maintain that F was not aware of or could not have known that torture was a violation of humanitarian law and punishable as such. (paragraph 24) H8 It was not established that the Afghan amnesty law had entered into force. In any case, this law did not automatically imply that the Dutch Public Prosecution Service was no longer entitled to commence criminal proceedings against suspects covered by this amnesty who were residing in the Netherlands. Amnesty might be central to reconciliation. Yet, it was unacceptable that war criminals who could travel freely ended up facing their victims who had fled. This did not only concern the Afghan, but also the Dutch legal order. (paragraph 34) H9 As concluded in Prosecutor v Hadzihasanovic, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Case No ICTY-01-47- AR72, 16 July 2003, superior responsibility for war crimes committed in a noninternational armed conflict existed in the mid-1980s under customary international law. Article 9 of the CLWA should be interpreted in that light. Accordingly, the case law of the UN ad hoc tribunals, also as regards the requirement of effective command and control to establish a superior/subordinate relationship, was taken into account. (paragraph 66) H10 As none of the charges had been legally or convincingly proven, F was acquitted on both counts. (paragraph 75) Date of Report: 04 April 2008

Reporter(s): Larissa van den Herik Analysis A1 In earlier appeal judgments of January 2007 (The Hague Court of Appeal, LJN: AZ7147, 29 January 2007 and The Hague Court of Appeal, LJN: AZ7143, 29 January 2007) concerning two other Afghan suspects, it was decided that the Dutch legislature could unilaterally establish universal jurisdiction, unless a written rule of international law prohibited this. A2 The Resolution of the Institute of International Law, to which the defence in this case referred as arguably prohibiting universal jurisdiction in this case, was not a source of written law, and it was unclear why the court did not unequivocally say so. Moreover, instead of using the distinction written law versus unwritten law, it would have been preferable to employ the term self-executing treaty provisions and decisions of international organizations (Article 94 of the CLWA read: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions of international institutions ). A Dutch court could not set aside a Dutch rule because of conflict with any treaty provision; this could only be done in case of violation of a self-executing treaty provision. The general term written law overlooked the additional criterion that the treaty provision must be self-executing and was therefore inaccurate. A3 Although the finding that the principle of legality had not been violated could be warranted, the underlying reasoning given by the court was rather imprecise. This was particularly true where the court referred to the prohibition against torture under human rights law as an argument for concluding that the defendant could not claim lack of knowledge that torture was a violation of international humanitarian law. Moreover, the legality argument might not have concerned so much the substance of the norm, but rather the criminalization of breaches of Common Article 3. As to this latter aspect, the court only briefly noted that it assumed that torture was a criminal offence in Afghanistan at the time it was allegedly committed in this case. A4 In relation to the relevance of the Afghan amnesty, it could be pointed out that national courts generally were not bound by domestic laws of a third state. Hence, even had it been clear that the Afghan amnesty law had entered into force and that it was a valid amnesty law from an international law perspective, the Dutch court would still have been correct in holding that it was not obliged to recognize this amnesty. A5 Another question was whether and to what extent it was within the Dutch court's discretionary power to decide that it would still give effect to the Afghan amnesty or whether in fact it was obliged under international law not to recognize the amnesty. It has been argued that the distinction between the obligations for state parties emanating from the first and the third paragraphs of Article 49 of the First Geneva Convention, Article 50 of the Second Geneva Convention, Article 129 of the Third Geneva Convention, and Article 146 of the Fourth Geneva Convention, was crucial. If there was a duty to

prosecute, states would in principle be barred from recognizing any amnesty as this would directly undermine this duty. However, if states were merely permitted to prosecute, as was the case with Common Article 3, a court would have some discretionary power as to whether to recognize the amnesty or not. A6 In exercising this discretion, a judge should look into the validity of the amnesty from an international law perspective. It had been argued that international law was moving towards prohibiting blanket, unconditional amnesties (J Dugard, Dealing with crimes of a past regime, Leiden Journal of International Law 12: 1001 1015 (1999) ( Dugard ), see also A Cassese, International Criminal Law, Oxford University Press, 315 (2003)), and such illegal amnesties should not be recognized. By contrast, conditional amnesties granted by truth commissions might be more deserving of foreign recognition. Whether a specific amnesty deserved recognition should depend on a variety of circumstances, such as the constitution, mandate, and powers of the truth commission, as well as the way it was established and under which requirements it granted the amnesty (see for a list of requirements, Dugard, 1012). A7 In this case, the court observed that the Afghan amnesty law had been debated in Afghanistan and that its detractors had pointed out that the amnesty was created by those who most feared prosecution. Moreover, the court concluded from the text of the amnesty it had received that no full amnesty for all individual crimes had been issued. These arguments were somewhat shallow, and it was unfortunate that the court did not explain the specific amnesty in more detail, or specify under which conditions a foreign amnesty could be recognised by Dutch courts, if at all. A8 As to the domestic rules on whether Dutch courts were allowed to recognize a foreign amnesty, attention might be drawn to the extraordinarily broad Dutch ne bis in idem principle which recognized foreign judgements and even out-of-court settlements on the same footing as Dutch ones (cf Article 68 of the Dutch Criminal Code). Interestingly, the procedural counterpart of Article 68, namely Article 255 of the Dutch Code of Criminal Procedure, did not include a similarly broad provision stipulating recognition of foreign decisions not to prosecute. The question whether the Dutch ne bis in idem principle could be invoked in relation to a foreign amnesty had not been conclusively answered yet by Dutch courts. A9 Finally, it was noteworthy that the court endorsed the International Criminal Tribunal for the former Yugoslavia's ( ICTY ) finding that it was irrelevant for superior responsibility for war crimes under customary international law whether the crimes were committed in an internal or an international armed conflict. The finding that conflict classification should be immaterial in relation to command responsibility for war crimes certainly had its merits. Yet, it had been questioned whether there was indeed sufficient state practice to support the ICTY's finding of customary law in this respect (cf C Greenwood, Command Responsibility and the HadzŽihasanović Decision, J Intl Crim Justice 2: 598 605, 2004). Therefore, one might argue that the court should have been somewhat more cautious in adopting findings of the ad hoc tribunals that a given rule had

the status of customary international law. A10 The court's openness to international jurisprudence was further illustrated by the fact that also in substance, it tailored the Dutch concept of superior responsibility to the international concept as this flowed from the case law of the ICTY. In particular, the court adopted the effective control requirement to establish a superior/subordinate relationship. Given that the court held that this requirement had not been met, it did not specify whether and to what extent the other aspects of superior responsibility the cognitive and operational aspects, as they had been interpreted by the ICTY bore direct relevance for the interpretation of Article 9 of the CLWA. This question was pertinent, as the Dutch concept of superior responsibility enshrined in the CLWA was narrower than the international concept as developed by the ICTY. However, this question was only relevant for crimes committed before 1 October 2003, when the provision on superior responsibility of the CLWA was replaced by Article 9 of the International Crimes Act, which provided for superior responsibility in a more comprehensive manner for crimes committed after 1 October 2003.