Uitspraak
8 July 2008
Criminal Division
No. 07/10063
Supreme Court of the Netherlands
Judgment
on the appeal in cassation against a judgment of The Hague Court of Appeal of 29 January 2007, number 22/006131-05, in the criminal proceedings against:
[Defendant 1], born in [place of birth] on [date of birth] 1948, detained at the time of service of the notice in the 'Midden Holland' Custodial Institution, De Geniepoort Remand Prison, in Alphen aan den Rijn.
1. The contested judgment
On appeal, the Court of Appeal quashed a judgment of The Hague District Court of 14 October 2005 - in so far as subjected to the decision of the Court of Appeal - and sentenced the defendant to twelve years' imprisonment on count 2, the principal charge of 'joint perpetration of torture, committed on several occasions' and count 3, 'wilfully allowing a subordinate to violate the laws and customs of war, where the offence involves the joint commission of acts of violence against one or more persons and causes serious bodily injury to another person'.
2. Proceedings in cassation
The appeal was lodged by the defendant. On his behalf A.A. Franken and L. Zegveld, both attorneys-at-law in Amsterdam, submitted written grounds for cassation. The written grounds of cassation are attached to this judgment and form part of it.
Acting Advocate General Bleichrodt submitted an opinion that the appeal should be dismissed.
3. Charges and judicial finding of fact
In accordance with the charges contained in the indictment, as amended at the hearing at first instance, on count 2, principal charge, and count 3, it is found proven that the defendant:
'2. at times in the period from 1 November 1989 to 31 December 1990, in or near Sedarat prison in Kabul, Afghanistan, together and in association with others, in his capacity as official, namely an official of the military intelligence service (the KhAD-e-Nezami) (in particular, as head/director of the KhAD-e-Nezami), in the course of carrying out his duties, on several occasions, (on each occasion) (wilfully) (seriously) injured someone who was deprived of his liberty, namely [victim 1] and [victim 2], with a view to extracting a confession and/or causing fear, while these acts were of such a nature that they could help to achieve the intended object, consisting in the fact that the defendant, in the course of his duties as official in the KhAD-e-Nezami (in particular, as head/director of the KhAD-e-Nezami), together and in association with co-perpetrators, then and there, on each occasion with the above-mentioned intentions,
* (on each occasion) wilfully mistreated [victim 1], who had been deprived of his liberty and was imprisoned as a member of the military forces in Sedarat prison:
- by at times in the period from 1 March 1990 to 30 June 1990 in Afghanistan, during a period of fourteen days or in any event on a number of days successively put [victim 1], partially unclothed, in a tank of (cold) water while the weather was cold and kept the above-mentioned [victim 1] awake for days on end and/or stopped the above-mentioned [victim 1] from sitting and/or lying down and/or leaning against a wall in order to prevent the above-mentioned [victim 1] from sleeping, with the result that the above-mentioned [victim 1] suffered severe pain and/or
- by in the period from 1 March 1990 to 30 June 1990 in Afghanistan wilfully causing the above-mentioned [victim 1] to suffer great fear by making threats (or causing them to be made) in the form of statements such as 'Forget humanity, you are Shanawaz-Gulbuddin, you wanted to destroy our revolution' and 'Confess that you are in touch with Gulbuddin and that Shanawaz Tanay is a supporter of Gulbuddin, otherwise I'll put you back in the water', and 'Keep him awake until he confesses. If he's not punished he won't confess', and
* (on each occasion) wilfully mistreated [victim 2], who had been deprived of his liberty and was imprisoned as a member of the military forces in Sedarat prison in Kabul;
- by in the period from 1 November 1989 to 31 December 1990 in Afghanistan punching the above-mentioned [victim 2] in the face and by on one occasion causing the above-mentioned [victim 2] to stand barefoot for several hours in the snow and by on several occasions keeping the above-mentioned [victim 2] awake for days on end and by on several occasions attaching electrical wires to the body of the above-mentioned [victim 2] and then administering current through the above-mentioned wires to the body of the above-mentioned [victim 2], causing severe pain to the above-mentioned [victim 2].
3. At times in the period from 1 October 1985 to 31 December 1988, in Kabul in Afghanistan, members of the KhAD-e-Nezami, the Afghan military intelligence service, (all) working for and subordinate to the defendant [defendant 1], together and in association with one another, repeatedly violated the laws and customs of war, one of these offences having caused serious bodily injury to another person and these offences, which in each case involved the joint use of violence against a person, consisted in the fact that the above-mentioned members of the military intelligence service (KhAD-e-Nezami) of Afghanistan, which belonged to one of the warring factions in a non-international armed conflict, did on several occasions commit acts of physical violence and inflict cruel and inhuman treatment, including torture, on a person who was not then taking a direct part in the hostilities (namely a civilian), namely [victim 3], such acts of physical violence and cruel and inhuman treatment and torture consisting in, among other things, the fact that the said members, together and in association with one another:
* on one or more date(s) in or around the period from 1 December 1985 to the end of February 1986 in or near the building of the KhAD-e-Nezami in Kabul:
- kicked [victim 3] on the shinbone and kicked and punched him on the body on several occasions or in any event on one occasion, and
- kept the above-mentioned [victim 3] awake for days on end and forced the above-mentioned [victim 3] to remain outside during a period of cold weather, and
- forcibly held the finger(s) of the above-mentioned [victim 3] between a door and the door frame and then slammed the door shut while the finger(s) of the above-mentioned [victim 3] were still between the door and the frame and cut off part of a finger of the above-mentioned [victim 3] without anaesthetic, causing the above-mentioned [victim 3] pain and serious bodily injury, and in respect of these above-mentioned acts of physical violence, one of which resulted in serious bodily injury, he, the defendant [defendant 1], at times in or around the period from 1 October 1985 to 31 December 1988 in Afghanistan, wilfully allowed persons subordinate to him, the defendant, to commit these offences, namely that he, the defendant, took no measures or insufficient measures to prevent these acts of physical violence and to punish the subordinates/persons responsible.'
4. Legal framework
- In so far as relevant here, the Criminal Code reads as follows:
'Article 8:
The applicability of articles 2-7 is limited by the exceptions recognised in international law.'
'Article 91:
The provisions of (...) this Book are also applicable to offences punishable under other statutes or regulations, unless the law provides otherwise.'
- In so far as relevant here, the Wartime Offences Act read as follows at the time the offences charged were committed:
'Section 1 (old):
1. The provisions of this Act are applicable to the crimes committed in time of war or punishable only in the event of war, which are described in:
1°. either Title I or Title II of Book 2 of the Criminal Code;
2°. the Military Criminal Code;
3°. sections 4-9 of this Act;
4°. sections 1 and 2 of the Genocide Convention (Implementation) Act;
5°. articles 131-134bis, 189 and 416-417bis of the Criminal Code, if the offence or crime referred to in these articles is a crime as referred to in this section.
2. In the event of an armed conflict which cannot be regarded as war and in which the Netherlands is involved either for the purpose of individual or collective self-defence or in order to restore international order and security, sections 4-9 shall apply mutatis mutandis and We may determine by order in council that the other provisions of this Act will be wholly or partly applicable.
3. War is deemed to include civil war.
Section 3:
Without prejudice to the relevant provisions of the Criminal Code and the Military Criminal Code, the provisions of Dutch criminal law are applicable to:
1°. any person who commits a crime as referred to in sections 8 and 9 outside the Kingdom of the Netherlands in Europe;
(...).
Section 8:
1. Any person who violates the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years or a fifth-category fine.
(...)
3. Life imprisonment, a determinate sentence not exceeding twenty years or a fifth-category fine shall be imposed:
1°. if the offence results in the death or serious bodily injury of another person or involves rape;
2°. if the offence involves the joint use of violence against one or more persons or the use of violence against a dead, sick or injured person;
(...).
Section 9:
Any person who wilfully permits an offence as described in the previous section to be committed by a subordinate shall be liable to the same sentence as that carried by such offences.
Section 10, subsection 2:
As regards the offences referred to in section 8, subsections 2 and 3, and the offences described in section 9, in so far as they are connected with the former, articles 70 and 76 of the Criminal Code (...) shall not apply.'
- The Convention relative to the protection of Civilian Persons in Time of War concluded in Geneva on 12 August 1949, known as the fourth Red Cross Convention (Dutch Treaty Series (Trb.) 1951, 75, referred to below as the Convention) reads, in so far as relevant here, as follows:
'Article 3 (1):
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(...).
Article 4:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
The provisions of Part II are, however, wider in application, as defined in Article 13.
Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention.
Article 146:
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
(...).
Article 147:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.'
- The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in so far as relevant here, reads as follows:
'Article 1:
1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.
Article 4:
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:
(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(...).'
5. Decision on defences
Under the heading 'discussion of international criminal law defences', the contested judgment states as follows:
'5.1. The defence has put forward a number of defences that have a common characteristic, namely the international law aspects of the defendant's prosecution and the 'scope' of sections 3 and 8 of the Wartime Offences Act. These defences, which are all argued at length in the memorandum of oral pleading, are summarised very briefly by the Court of Appeal (albeit in a different order) as follows.
a) Dutch criminal law lacks (universal) jurisdiction in the present case if it concerns a non-international armed conflict in the period to which the charges relate, since 'only' common article 3 of the Geneva Conventions is applicable. These Conventions (or other international law rules) do not provide for universal criminal jurisdiction in respect of breaches of these articles; the creation of such jurisdiction requires authorisation under international law which cannot be found in unwritten international law, as also stated by the ICTY in its decision in the Tadic case of 2 October 1995. In the view of the defence, the situation in Afghanistan at the time in question did not constitute a non-international armed conflict, in any event as regards the acts forming the basis of the charges. This is why the prosecution brought by the Public Prosecution Service, which is pursuing a prosecution policy that is in breach of international law, should be declared inadmissible.
b) The Wartime Offences Act did not relate (in any event in the 1980s) to breaches of the rules laid down in common article 3. This is why the provision abolishing the limitation period, as introduced by the Act of 8 April 1971 (Bulletin of Acts and Decrees (Stb.) 210) in section 10 of the Wartime Offences Act, does not extend to the charge against the defendant (in count 3) in respect of the alleged victim [victim 3] (always assuming that the conflict is a non-international armed conflict). The international legal arguments that led to this change in the law relate only to the grave breaches (i.e. very serious war crimes) referred to in the Geneva Conventions. Count 3 of the indictment against the defendant is therefore barred by the expiry of the limitation period. This is another reason why the prosecution brought by the Public Prosecution Service should be declared inadmissible.
c) Nor can this alleged victim be treated as a "protected person" within the meaning of the Geneva Conventions. In consequence, the defendant should be discharged from prosecution for this offence.
d) Having regard to the submissions at b), the criminal liability of the defendant for the torture with which he is charged cannot be based on common article 3 or on section 8 of the Wartime Offences Act, on the assumption that this is a non-international armed conflict. The sole wish of the legislator in this Act was to comply with the 'grave breaches' obligation under the Geneva Conventions. Criminal liability for acts should be assessed by reference to the law of the place of the offence; application of Dutch law to acts committed in Afghanistan is contrary to the principle of legality. This too means that the defendant should be discharged from prosecution for this offence;
e) The nature of the conflict and the protected status of the alleged victim have wrongly not been included and not substantiated by facts in count 3. As the manner in which this charge was brought would not be accepted by the ICTY in practice, the indictment should be declared void.
5.2. Before discussing the specific defences, the Court of Appeal will set out its views on the general aspects of the prosecution of the defendant and the applicable law.
5.2.1 The defendant is accused of acts that he is alleged to have committed in Kabul, Afghanistan, in the 1980s and 1990 as a high-ranking officer, in charge of the Afghan military intelligence service. These acts involved, in brief, the torture1) (or participation in or allowing the torture) of a number of Afghan citizens who were in the power of this intelligence service. Criminal proceedings were instituted against him after he had sought refuge in the Netherlands as an asylum-seeker and had come to the attention of the Dutch criminal justice authorities.
In view of this, it can be held that the basis for the prosecution in the present case is not the territoriality, nationality or protective principle, but the universality principle (secondary jurisdiction). The Court of Appeal recognises that this jurisdiction, in its secondary form too, is applied by the Dutch legislator only with great caution and gives rise to questions of legitimacy in international law as it affects the sovereignty of the territorial state.
5.2.2 In the view of the Public Prosecution Service, the charges against the defendant come within the scope of the Geneva Conventions of 12 August 1949. These Conventions and the rules they contain relate primarily to war in the sense of an international armed conflict; infringements of some of these rules are designated as "grave breaches" (e.g. in article 147 of the Fourth Convention2)). However, the Conventions also make provision in their common article 3 for minimum rules governing the humane treatment of "persons taking no active part in the hostilities" in the case of non-international armed conflicts. The Court of Appeal notes that these rules were described by the International Court of Justice (ICJ) in its decision of 27 June 1986 in the case of Nicaragua v. the USA (§ 218, 219; with reference to a previous decision of 1949) as a "minimum yardstick; they ... reflect elementary considerations of humanity". And: "the minimum rules applicable to international and non-international conflicts are identical. ... The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions." The present case concerns torture (or participation in or allowing) torture, which is expressly mentioned both in article 3, opening words and 1 (a), and in article 147 of the Fourth Convention.
It follows that the acts of which the defendant is accused must be regarded as grave breaches of the substantive rules of international humanitarian law in international and non-international armed conflict (although in the latter case they do not technically qualify as 'grave breaches' under the Convention). To this extent the nature of the conflict is immaterial, even in the view of the defence.
5.2.3 However, the Conventions do make a distinction as regards the obligations of the contracting parties to uphold the substantive rules of international humanitarian law.
Article 146 of the Fourth Convention reads as follows:
"The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
..."
The Court of Appeal interprets this provision as follows: the first two paragraphs of this article impose an obligation to make 'grave breaches' criminal offences and to investigate and try offenders regardless of their nationality, but that as regards other infringements, as in the case of article 3, there is "only" an obligation to "suppress" them, without any stipulation as to the manner in which this is to be done. In itself, the text of the Convention leaves open the possibility of the criminal law being used for enforcement purposes in the latter case too. The question of whether a state is entitled to do so would certainly seem capable of being answered in the affirmative where a case involves its own territory and its own citizens are perpetrators or victims. But the present case concerns the exercise of secondary jurisdiction based on the universality principle.
The defence has argued - and produced many sources to prove - that Dutch criminal law, when viewed from the perspective of international law, may not go so far. There are two arguments against this. First, it should be noted that in the parliamentary history of the Torture Convention (Implementation) Act the Dutch legislator, in 1987, based the applicability of the universality principle (which is interpreted rather more restrictively by the Supreme Court) in part on the 'intolerableness of the idea that torturers could move freely to other countries and there come face-to-face, unpunished, with their victims who have fled abroad.'3) This situation occurs in the present case and could not necessarily be 'resolved' by transferring the defendant to his country of origin (and the scene of the crime) since this might possibly be contrary to the absolute rights safeguarded in the European Convention on Human Rights. Second, section 3, opening words and 1° of the Wartime Offences Act provides without qualification - in any event literally - for jurisdiction over the war crimes specified in sections 8 and 9 of that Act. The relevant part of this section reads as follows:
"Without prejudice to the relevant provisions of the Criminal Code and the Military Criminal Code, the provisions of Dutch criminal law are applicable to:
1°. any person who commits a crime as referred to in sections 8 and 9 outside the Kingdom of the Netherlands in Europe; ...".
5.3. As regards the nature of the conflict, the Court of Appeal is of the opinion, like the District Court, the defence and (more implicitly) the Public Prosecution Service, that the conflict in Afghanistan in the 1980s was basically a non-international armed conflict, namely a conflict between the regime in Kabul and the Mujaheddin, who rose up in arms against it. Although the regime was to some extent backed by Russian advisers and army units, which also engaged in hostilities, this does not detract from the Court of Appeal's opinion that the conflict was not basically of an international nature. After all, the most essential characteristic of an international armed conflict is that it is a conflict between sovereign states; the Court of Appeal refers to Article 2 of the Fourth Geneva Convention. This was not the case here, as is also evident from the statements and reports of expert witness Giustozzi introduced in evidence.
5.4. Against this background, the Court of Appeal holds as follows in respect of the specific defences.
5.4.1 What has been put forward above with respect to section 3 of the Wartime Offences Act gives rise to the question of whether this statutory provision is in accordance with international law. Before this question can be answered, however, it is necessary to determine whether the Dutch courts are competent to rule on this issue in view of the separation of powers between the legislature and other organs of the state, as laid down in article 94 of the Constitution. Article 94 of the Constitution reads:
"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 decisions of international organisations."
This provision raises the question, however, of whether the court is competent not to apply section 3 of the Wartime Offences Act in this case. There is also the question of whether there is anything in the parliamentary history of section 3 of the Wartime Offences Act to suggest that this section, notwithstanding its clear wording, should be interpreted restrictively and warranting the conclusion, as argued by the defence, that this article does not provide for secondary jurisdiction based on the universality principle in this case.
5.4.2 As seems to have been widely accepted, article 94 of the Constitution does not allow the courts to review acts of parliament for compatibility with unwritten international law. This interpretation of the law by the Supreme Court in its Nyugat II judgment of 6 March 1959 NJ 1962.2, served as a basis for the 1983 revision of the Constitution and is also expressed (albeit in reverse terms) in the text of this article of the Constitution. In the opinion of the Court of Appeal, no argument - or at least no sufficiently cogent argument - can be derived from the Geneva Conventions to support the view that section 3 of the Wartime Offences Act is incompatible with international law as laid down in these Conventions. Although defence counsel has indeed pointed to a general rule of international law that universal jurisdiction may be exercised only in so far as this is authorised by international law and has argued that no such authorisation with respect to violations of common article 3 (in the case of non-international armed conflicts) can be found in the Geneva Conventions, counsel acknowledged, when asked, that no such rule of international law can be found in any written treaty provision.
This being the case, the Court of Appeal does not deem itself competent to review section 3 of the Wartime Offences Act to determine whether it is compatible with what are manifestly unwritten rules of international law. As the Public Prosecution Service too is bound by article 94 of the Constitution in deciding whether to prosecute, this in itself disproves the complaint that the Public Prosecution Service is exercising its prosecutorial powers in breach of international law.
Defence counsel has also argued by rejoinder that under article 8 of the Criminal Code the applicability of the provisions governing jurisdiction in articles 2 to 7 "is limited by the exceptions recognised in international law" and that, under article 91 of the Criminal Code, article 8 also applies to the Wartime Offences Act. Quite apart from the question of what exceptions in international law are covered by this article (the Court of Appeal considers that it covers immunity) and quite apart from what meaning should be attributed in this respect to the opening words of section 3 of the Wartime Offences Act, the Court of Appeal is of the opinion that article 8 of the Criminal Code may not set aside the Constitution in the interpretation of section 3 of the Wartime Offences Act.
5.4.3 Against the background of the prohibition of review as noted above, the Court of Appeal would point out for the record that it appears from the Explanatory Memorandum (see note 3, p. 4) to the Torture Convention (Implementation) Act that the legislator was clearly already of the opinion in 1987 that "torture committed in the case of internal or international armed conflict constitutes a violation of the laws of war, .... which is an offence under section 8 of the Wartime Offences Act". It therefore considered that the provisions governing criminal liability for torture (and jurisdiction in respect of torture) in the Wartime Offences Act also applied to violations of common article 3. These provisions seem fairly far-reaching; for example, the then Advocate General, Van Dorst, argued in his opinion (§ 10) prior to the decision of the Supreme Court of 11 November 1997, NJ 1998.463 (Knesevic II) that the Netherlands takes an exceptional position by providing that not only the "grave breaches" but also the less serious breaches are covered by universal jurisdiction. However, support for the establishment of secondary jurisdiction based on the universality principle (i.e. no trial in absentia) can be found in the development of treaty law since the Second World War, as represented in the separate views of the judges in the decision of the ICJ of 14 February 2002 in the Yerodia case (Congo v. Belgium). Owing to the non-ultra petita rule, the ICJ itself was precluded from answering the question about the legitimacy under international law of the unlimited universal jurisdiction exercised by Belgium "in absentia".
5.4.4 The Court of Appeal also notes with regard to the history of the Wartime Offences Act that, in keeping with the analysis given by the Supreme Court in its decision in the Knesevic II case, the legislator wished at that time to comply fully with the Netherlands' obligations under the Geneva Conventions. It was primarily thinking in this connection - this much can be granted to the defence - of the obligation to make 'grave breaches' criminal offences, which can hardly be regarded as surprising against the background of the global conflict that had ended only a short time before. However, it is evident from the debate on the bill (pages 2247 and 2251) that, even at that stage, the possibility was kept open that crimes committed in a non-international armed conflict (it concerned the coup in Bolivia) might be tried in the Netherlands. Whatever the case, the Court of Appeal infers from the following findings of law in the above-mentioned judgment of the Supreme Court that it should be assumed that jurisdiction also exists in the case of violations of common article 3:
"6.1. In the contested decision the Court of Appeal evidently assumed that the acts described and defined in more detail in the [...] said application would, if proven, constitute acts in violation of common article 3 of the 1949 Geneva Conventions and consequently constitute the crime described in section 8 of the Wartime Offences Act. As this view has not been contested in the cassation proceedings, it must also be assumed to be correct in assessing the ground of appeal.
6.2. The ground of appeal evidently argues that the Court of Appeal was wrong to hold that the Dutch courts have jurisdiction with respect to the offences alleged in the application for the institution of a preliminary judicial investigation.
6.3. In view of what has been held above at 5.3, section 1 of the Wartime Offences Act must be interpreted as meaning that the relevant provisions of this Act, including section 3, opening words and 1º and sections 10, 10a and 11, are always applicable to the crimes defined in sections 8 and 9, without the restrictions specified in subsections 1, 2 and 3 of section 1.
6.4. The Court of Appeal was therefore right to hold that the Dutch courts have jurisdiction with respect to the offences alleged in the application for the institution of a preliminary judicial investigation."
The Court of Appeal recognises that the application referred to in the decision related to offences that were alleged to have been committed in the former Yugoslavia in 1992, but does not see any basis whatever in the findings of the Supreme Court for the view (or assumption) that these findings concerning jurisdiction would not also apply to offences committed 10 to 15 years earlier, as is the situation in the present case.
In view of the above, the defence relating to the lack of jurisdiction as set out at a) should be rejected. The Court of Appeal emphasises once again that - in view of the aut dedere aut punire principle (either extradite or punish) - the present case involves the exercise of secondary jurisdiction based on the universality principle. Moreover, the importance of the presence of the defendant in the territory of the prosecuting state is also emphasised in the Explanatory Memorandum to the International Crimes Act.4)
5.4.5 The submission at b) that the Wartime Offences Act did not at the time relate to violations of common article 3 of the Geneva Conventions and that the abolition of the period of limitation does not apply for such offences should be rejected on the same grounds.
5.4.6 The defence referred to at d) deserves the same fate. If there are no grounds for limiting the scope of operation of the Wartime Offences Act, this applies not only to the jurisdiction but also to the individual criminal liability for war crimes provided for in section 8 of the Act, even in the case of non-international armed conflict. As the acts with which the defendant is charged must be classified as grave breaches of the substantive rules of international humanitarian law (see above § 5.2.2) and criminal jurisdiction would be pointless if they could not be enforced through individual criminal liability, the Court of Appeal sees no ground whatever for holding that the offence definition and sanction rule in section 8 of the Wartime Offences Act do not also apply to the defendant for the crimes committed by him in a non-international armed conflict in Afghanistan. The Court of Appeal agrees with the Procurator General to the Supreme Court and Advocate General Keijzer in the application for cassation in the interests of the law, which resulted in the judgment of the Supreme Court of 18 September 2001 (AB1471, in the Bouterse case). This concludes (§ 26) among things that:
"In the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975) [adopted by Resolution 3452 (XXX), 9 December 1975] the General Assembly of the United Nations stated not only that torture is incompatible with human dignity and human rights but also that the law of each state should make torture a criminal offence and that cases of torture should be criminally prosecuted."
In view of the above, the defendant may not avail himself of the defence that in the late 1980s he did not have to take account of what the Dutch Wartimes Offences said about acts that were not offences under international law and that application of the Wartime Offences Act is contrary to the principle of legality.
5.4.7 As regards the defence's submission at e) that count 3 of the indictment should be declared void as the nature of the conflict and the protected status of the alleged victim were not mentioned or substantiated factually in the charges, the Court of Appeal holds as follows.
The alleged requirement cannot be inferred from the definition of the offence in section 8 in conjunction with section 9 of the Wartime Offences Act since this "merely" states that "violation of the laws and customs of war" is a criminal offence. What these laws and customs of war entail is apparent from, among other things, the Geneva Conventions. As indicated above at 5.2.2, the present case concerns a charge involving a substantive rule that is independent of the nature of the conflict. The contested charge refers to both types of conflict in its reference to the relevant treaty provisions. Although the possibility cannot be excluded in advance that an explicit alternative charge would have provided even greater clarity, the Court of Appeal does not believe that the charge is defective in this respect. Here too, no plausible case has been made for concluding that the defendant has been hampered in his defence (or in preparing his defence) by the manner in which the charges are brought.
As regards the protected persons, their description in common article 3 has been included in the charges in the passage about persons who did not take an active part in the hostilities (namely civilians or members of the armed forces who had laid down their arms or been placed hors de combat); moreover, the acts explicitly prohibited in these articles are actually described, and the circumstances relevant to the criminal law classification in accordance with section 8 of the Wartime Offences Act are specified.
In the case of an international armed conflict, article 147 of the Fourth Geneva Convention refers only to offences "committed against persons protected by the present Convention". The protected persons are defined in article 4 of that Convention as "persons ... who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."
The Court of Appeal notes - as does the defence - that this description is missing in the charges. As the Court of Appeal has classified the conflict as non-international, there is no need to examine the possible consequences of the absence of this designation. Here too no plausible case has been made for saying that the defendant has been hampered in his defence (or in preparing his defence) by the manner in which the charges are brought.
5.4.8 The Court of Appeal also considers that, contrary to what has been submitted by the defence at c) above, victim [victim 3] must be treated as a "protected person" within the meaning of the Geneva Conventions, which is sufficiently clear from the evidence. Reference is made in this connection in particular to items of evidence nos. 11-16.
Footnotes:
1) The Court of Appeal will disregard below the distinction made under Dutch law between folteren and martelen.
2) The references to the Geneva Conventions are confined by the Court of Appeal to the Fourth Convention relative to the Protection of Civilian Persons in Time of War. The Court of Appeal does not discuss whether it is more appropriate to apply this Convention than the First Convention (for the wounded and sick in the armed forces in the field) or the Third Convention (relative to the treatment of prisoners of war).
3) TK (House of Representatives) 1986-1987, 20 042, no. 3 p. 6.
4) TK 2001-2002, 20 337, no. 3 p. 17/18.'
6. Assessment of the first ground of appeal
6.1. The ground of appeal is directed against the rejection of the defence that the Dutch courts have no jurisdiction in respect of the offences in count 3.
6.2. It should be noted at the outset that since the entry into force of the Convention, acts in breach of article 3 of the Convention have constituted the crime described in section 8 of the Wartime Offences Act and that in such a case - pursuant to the decision of the Supreme Court of 11 November 1997, LJN ZD0857, NJ 1998, 463 - the Dutch courts are entitled under section 3 (old) of the Wartime Offences Act to exercise what is termed universal jurisdiction.
6.3. The defence and the ground of appeal are essentially based on the position that the Dutch courts, which do not have primary jurisdiction in respect of the charges in count 3, also do not have secondary jurisdiction based on the principle of universality in this respect. This position is based on the view that since this concerns an offence committed in an armed conflict which, at the time of the acts of which the defendant is accused (1985-1988), was not of an international character (referred to below as an internal armed conflict) and that at that time there was no - written or unwritten - mandate under international law to create universal jurisdiction with regard to such offences, section 3 (old) of the Wartime Offences Act should not be applied in the absence of such a mandate.
6.4. Article 94 of the Constitution provides that 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 decisions of international organisations. It is implicit in this provision that the courts should determine whether statutory regulations are in compliance with treaties and decisions of international organisations, but may not test them for compliance with unwritten international law (cf. 18 September 2001, LJN AB1471, NJ 2002, 559).
6.5. In view of the above finding at 6.4, the Court of Appeal was correct to hold that it was not competent to test the jurisdictional provision of section 3 (old) of the Wartimes Offences Act for compliance with unwritten international law.
6.6. Contrary to what was submitted at the appeal hearing and in the ground of appeal, article 8 of the Criminal Code provides no basis for not applying the jurisdiction provision of section 3 (old) of the Wartime Offences Act on these international law grounds. Although article 8 of the Criminal Code does indeed provide that the applicability of the Dutch provisions on jurisdiction is limited by the exceptions recognised in international law, this does not amount - partly as a result of the legislative history of this provision (H.J. Smidt, Geschiedenis van het Wetboek van Strafrecht (History of the Criminal Code), part I, 1891, p. 147) - to more than a statutory recognition of immunity from jurisdiction derived from international law.
6.7. The ground of appeal is therefore untenable.
7. Assessment of the fifth ground of appeal
7.1. The ground of appeal is that - in view of article 8 of the Criminal Code - the Court of Appeal failed to hold (ex proprio motu) that the prosecution brought by the Public Prosecution Service is inadmissible for want of jurisdiction as the defendant enjoyed immunity as a person in authority at that time in Afghanistan.
7.2. The ground of appeal is unsuccessful if only in that the defendant is not entitled to immunity from jurisdiction as referred to above at 6.6 either in his former capacity of head of Afghanistan's state intelligence service or in his capacity of deputy minister of state security.
8. Assessment of the second ground of appeal
8.1. The ground of appeal challenges the rejection by the Court of Appeal of the claim that the right to prosecute is barred by the limitation period in respect of count 3.
8.2. The defence and the ground of appeal are based on the view that section 10, subsection 2 of the Wartime Offences Act - which provides, in brief, that the exclusion of the limitation period in respect of, inter alia, the offences made criminal offences in section 8, subsection 3 of the Wartime Offences Act, in conjunction with section 9 of that Act - relates only to the grave breaches (i.e. very serious war crimes) committed in international conflicts and not to violation of article 3 of the Convention in an internal armed conflict. However, no support for this view can be found in the wording of section 10, subsection 2 of the Wartime Offences Act or in the legislative history of this provision. It should be noted in this connection that even if it must be assumed - as submitted in the explanatory notes to the ground of appeal - that "no support can be found in international law for the notion that the right to prosecute a crime such as that of which the defendant is accused does not become barred by the passage of time", this does not prevent the national legislator from introducing a provision designed to prevent the right of prosecution from becoming barred in respect of such crimes.
8.3. In view of this and taking into account that count 3 is based on section 8, subsection 3 of the Wartime Offences Act in conjunction with section 9 of that Act, the Court of Appeal was right to reject the claim based on the limitation period. It follows that the complaint on grounds of law is untenable and that the complaint about the reasons need not be discussed.
9. Assessment of the fourth ground of appeal
9.1. This ground of appeal is directed against the rejection of the defence that the victim [victim 3] referred to in count 3 cannot be regarded as a protected person within the meaning of the Convention.
9.2. The Court of Appeal held that it is sufficiently clear from items of evidence nos. 11-16 that [victim 3] may be regarded as a protected person within the meaning of the Convention. Having regard to the content of these items of evidence, which are attached to this judgment, the view taken by the Court of Appeal does not appear to be an incorrect interpretation of the law and is sufficiently substantiated. Contrary to the submission in the ground of appeal, it cannot be said that a person is a protected person within the meaning of the Convention 'only if he has actually been incorporated into the opposing party'.
9.3. The ground of appeal is untenable.
10. Assessment of the third ground of appeal
10.1. The ground of appeal is directed against the rejection of the defence that at the time of the act charged in count 3 torture was not a criminal offence in the case of an internal armed conflict.
10.2. It must be inferred from the legislative history of the Wartime Offences Act, which is set out in the above-mentioned decision of 11 November 1997, LJN ZD0857, NJ 1998, 463, that one of the reasons why the legislator created section 8 of the Act was to fulfil the obligation to which the Netherlands was subject under article 146 (3) of the Convention to take measures 'necessary for the suppression of all acts contrary to the provisions of the present Convention, including acts as described in article 3 of the Convention, other than the grave breaches defined in article 147.' In view of this, the offence of violating the laws and customs of war as created in section 8 of the Wartime Offences Act should be understood as including the offence of acting in breach of article 3 of the Convention, including the commission of acts of physical violence, cruel treatment and torture against the persons listed there in an internal armed conflict, which criminal liability came into effect when the Convention entered into force. It is therefore not necessary to consider whether, as submitted in the explanatory notes to the ground of appeal, 'torture was not a criminal offence under the international laws and customs of war in the 1980s (...)'.
10.3. It follows from the above that the Court of Appeal was right to dismiss the defence. The complaint on grounds of law is accordingly untenable and the complaint about the reasons need not be discussed.
11. Assessment of the sixth and seventh grounds of appeal
The grounds of appeal cannot result in cassation. Pursuant to section 81 of the Judiciary (Organisation) Act, no further reasons need be given for this judgment since the grounds of appeal do not raise questions of law that need to be answered in the interests of the uniform application or development of the law.
12. Conclusion
As none of the grounds of appeal can result in cassation and the Supreme Court also sees no grounds on which it could set aside the disputed judgment ex proprio motu, the appeal must be dismissed.
13. Decision
The Supreme Court dismisses the appeal.
This judgment was given by vice-president F.H. Koster as presiding judge and by justices A.J.A. van Dorst, W.A.M. van Schendel, W.M.E. Thomassen and H.A.G. Splinter-van Kan, in the presence of S.P. Bakker, clerk of the court, and pronounced on 8 July 2008.