International Crimes before Dutch Courts: Recent Developments

Abstract

In the early 1990s, two former members of the Afghan secret service applied for a residence permit in the Netherlands. Their request was denied on the basis of the exclusion clause of Article 1F(a) of the Vienna Convention Relating to the Status of Refugees. There were serious reasons for suspecting that the men had committed war crimes during the Afghan civil war of 1979-92. In 2000, the immigration authorities transmitted the files of the two men to the public prosecution office, which initiated prosecutions in 2003. At the trial, defence counsel raised various preliminary challenges. They argued that the case should be declared inadmissible since relying on the immigration files would violate the nemo tenetur principle and the right against self-incrimination enshrined in Article 6 of the European Convention on Human Rights. Furthermore, the court had no universal jurisdiction over violations of Common Article 3 of the Geneva Conventions since there was no international rule mandating a right to universal jurisdiction over war crimes committed in non-international armed conflicts. The Hague District Court dismissed the defence challenges and eventually convicted the Afghan nationals to 9 and 12 years' imprisonment. The Hague Appeal Court endorsed most of the findings of the District Court and confirmed the convictions and sentences. The reasoning underlying the decisions, both at first instance and at appeal, raise questions particularly with regard to universal jurisdiction. In this article the defence arguments are explored and the reasoning of the courts is analysed.

European Arrest Warrant

“…The European Council directed the Justice and Home Affairs Council (hereinafter 'JHA Council') to flesh out that agreement and to determine the relevant arrangements, as a matter of urgency and at the latest at its meeting on 6th and 7th December 2001. 79 On 29th November 2001, when the proposal was first consulted, the European Parliament proposed over 40 amendments and called for renewed consultations if the Council intended to amend the Commission proposal substantially. 80 On the same day, the European Parliament called on the Council to resort to closer co-operation, i.e.…”

“…79 The contracting parties undertook to improve the surrender for the purpose of prosecution or execution of sentence between, on the one hand, the EU Member States and, on the other hand, Norway and Iceland. In addition, they undertook to ensure that the extradition system between them shall be based on a mechanism of surrender pursuant to an EAW (details see Chap.…”

“…It stems from the principle of legality (nulla poena sine lege), but is also closely linked to state sovereignty and reciprocity. It is often asserted that the requirement, although 79 30.3.2010. 81 Klip (2012), pp.…”

“…74 Denmark. 79 However, at any time Denmark may decide that it no longer wishes to avail itself of that regime. 80 …”

“…The executing judicial authority may refuse to execute the EAW if the act on which the EAW is based does not constitute an offence under the law of the executing Member State. 79 However, in relation to taxes or duties, customs and exchange, execution of the EAW shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State. The rules concerning tax offences are logical.…”