Last Updated: Friday, 19 September 2014, 13:55 GMT

Judgment of the The Hague Court of Appeal in the Case of Public Prosecutor's Office number 09-750007-07

Publisher Netherlands, The: The Hague Court of Appeal
Publication Date 17 December 2007
Citation / Document Symbol LJN: BC1757
Reference Docketnumber: 22-006120-07
Other Languages / Attachments Original in Dutch
Cite as Judgment of the The Hague Court of Appeal in the Case of Public Prosecutor's Office number 09-750007-07, LJN: BC1757, Netherlands, The: The Hague Court of Appeal, 17 December 2007, available at: http://www.refworld.org/docid/4905cb292.html [accessed 20 September 2014]
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Docketnumber:    22-006120-07
Casenumber:    09-750007-07
Sentence Date:  17 December 2007
DEFENDED ACTION



The Hague Court of Appeal
three-judge criminal section


Judgement


rendered on the appeal against the judgement of The Hague District Court of 24 July 2007 in the criminal case against de suspect:


[suspect], born in [birth place] Rwanda on [birth date] 1968,
currently detained in the Penitentiary of Haaglanden, Penitentiary Complex Scheveningen Unit 2 in The Hague.


Hearings

1.   This judgement is rendered as a result of the hearings in the court of first instance and the hearing on appeal in this court of appeal on 3 december 2007.

The court of appeal has taken cognizance of the demand of the Advocate General and of that which has been brought forward by and on behalf of the suspect.

The advocate general has moved that the judgement be set aside insofar as it concerns barring the public prosecutor from prosecution of the suspect on count 1 in the summons with case number 09/750007-07.

Charges

2.   The suspect is charged with that which is mentioned in the initiatory writs of summons and the further description of one of them as laid down in Section 314a of the Code of Criminal Procedure. A copy of this is included in this judgement.
From the judgement of the court of first instance, this court of appeal derives the following summary description of the charges which the public prosecutor's office brought against the suspect.
1.  Suspect is on trial for involvement in a number of serious offences (which allegedly) have been committed in Rwanda in April 1994. The charges directed at the suspect are contained in two writs of summuns which will be handled in a joint action.
2.  Suspect was summoned for the first time for the case with case number 09/750009-06 for a pro forma session on 21 November 2006. This case was again handled pro forma on 12 February 2007 and 5 March 2007, and also in the session of 11 May 2007, which was continued on 16 and 21 May 2007. This summons contains the following complex of facts:
I  Ambulance murders, in short, the killing of a number of women and children who were being transported in an ambulance;
II  Seventh Day Adventists buildings Mugonero, in short, the killing of and/or inflicting of (grievous) bodily and/or mental injury to a large group of people who had fled to these buildings;
III  Taking of hostages/ humiliating/ threatening of the family [A].
3.  Suspect was summoned for the first time for the case with case number 09/750007-07 for the hearing of 11 May 2007 (continued on 16 and 21 May 2007). This second summons contains the following complex of facts:
IV   Rapes and attemps on the lives of a number of women;
V  Removing of and murdering of the grandchildren of the family [B].
4.   The whole of this complex of facts has -- in short -- been charged as the principal charge of war crimes(Section 8 Act on laws governing war crimes) and as the alternative charge that of torture (sections 1 and 2 Convention against Torture Implementations Act).
5.   On the further second summons all five of the complex of facts were jointly charged(in count 1) as genocide (section 1 Genocide Convention Implementation Act). The prosecution with respect to this fact was taken over by the public prosecutor from the de Prosecutor of the International Tribunal for the prosecution of persons responsible for genocide and other serious violations of the international humanitarian law, committed on the territory of Rwanda or neighbouring countries of Rwanda during the period in time between 1 January 1994 and 31 December 1994 (further to be referred to as: Rwanda-Tribunal).
Proceedings

3.   In the court of first instance, the public prosecutor was barred from prosecuting the charge of genocide, formulated in the second summons as count 1(case number 09-750007-07)on the grounds of -- in short -- lack of jurisdiction for this count. The public prosecutor filed an appeal against the judgement on 1 August 2007.
The objections against the judgement of the court of first instance were laid down in a date bearing document of Appeal of 17 August 2007 and a date bearing document of Further Appeal on 28 September 2007.

The scope of the appeal

4.   The Court of Appeal establishes that the decision of the court of first instance exclusively refers to (preliminary questions with respect to) the fact charged under count 1 of the second summons. The Court of Appeal assumes that the court of first instance (after joining the facts of the first and second summons on 11 May 2007) has substantively split this fact from the other facts as laid down in section 285 of the Code of Criminal Procedure.

Allowability of the appeal of the public prosecutor's office

5.   During the hearing in the court of appeal on 3 December 2007 the counsel for defence pleaded that the appeal of the public prosecutor's office should be dismissed.To that end, counsel for the defence argued -- in essence -- that the decision of the court of first instance is an intermediary decision, which according to the opinion of the defence, is not open to appeal.
The court of appeal already ruled on this defence during the hearing in appeal. The court of appeal -- with reference to the judgement of the Supreme Court of 13 January 2004 (LJN: AN 9235) -- judges that in view of the wording and the description of the decision in the judgement of the court of first instance, it concerns a final judgement as defined by section 138 of the Code of Criminal Procedure against which,on the grounds of section 404, first subsection, of the Code of Criminal Procedure, an appeal may be lodged. Subsequently,the court of appeal rejected this defence.

Furthermore, during counsel's speech for the defence it was argued that the public prosecutor's appeal should be dismissed on the ground that the document of appeal had not been submitted within the required time frame as laid down in section 410 of the Code of Criminal Procedure. The court of appeal considers that section 410 of the Code of Criminal Procedure gives the court of appeal the possibility to decide for dismissal of the appeal.
However, this section does in no way contain an obligation for that and the court of appeal sees no reason whatsoever in the underlying matter to decide for a dismissal. Therefore, the court of appeal rejects this defence.

Allowability of the public prosecutor's office to prosecute

6.   Counsel for the defence has pleaded, consistent with his plea in the first instance, that the public prosecutor's office should also be barred from prosecuting the suspect on other grounds than those in connection with the jurisdiction.
The court of appeal rejects this defence. Insofar as the court of appeal thinks to be able to fathom the underlying grounds for the argument, the motivation of this decision will be omitted for the sake of efficiency. After all, the public prosecutor's office is barred from prosecuting the suspect in the matter of genocide for reasons connected to jurisdiction, as will hereafter be considered and decided.

Request for adjournment of the proceedings

7.   Counsel for the defence, after an earlier request to that effect at the beginning of the hearing in appeal, which was rejected by the court of appeal,repeated his request for an adjournment of the proceedings during his speech. Counsel for the defence argues to that end that he wishes to have a number of witnesses heard with respect to -- in short -- the actual procedure around the prosecution referral by the Prosecutor of the Rwanda Tribunal to the Dutch Judicial Authorities. Moreover, according to counsel's argument, the opinions of experts issued recently by the public prosecutor and introduced at the hearing, only raises new questions. These require study, for which the defence should be awarded time. Counsel would also like to have more time to respond to the position taken by the advocate general. With respect to that, the court of appeal took the following grounds.The legal questions under discussion during the appeals trial are in essence the same as those of the trial in the first instance. Therefore, Counsel has had ample time to (also further) consider these questions. Counsel had moreover already known for a month that the court of appeal had asked the advocate general to issue an expert's report on the aspects of the practices in conventional-law connected to the contacts maintained between the Prosecutor and the Dutch judicial authorities.To that extent the -- at admittedly short notice before the hearing -- issued expert's reports cannot have constituted a surprise for him. Also in view of the small size of the last report of the Prosecutor, one side with an annex of five pages,and the circumstance that the trial on appeal was interrupted for an hour in order to study the new report, the court of appeal once again rejects counsel's request. That same fate was shared by the request to hear a number of witnesses since the court of appeal considers to be sufficiently informed about the contacts between the Prosecutor of the Rwanda Tribunal and the Dutch justice authorities.The necessity of hearing these witnesses has consequently not been shown.

The procedure with respect to the prosecution

8.   The suspect, who applied for political asylum in the Netherlands in 1998, was arrested on 7 August 2006 in Amsterdam on suspicion of his having committed war crimes. His prosecution was initially founded on that (cf. the first summons, see § 2 under 2). By means of a letter dated 11 August 2006 the Public Prosecutor informed the Prosecutor of the Rwanda Tribunal of the arrest of the suspect. On 29 September 2006 the Prosecutor of the Rwanda Tribunal subsequently submitted a written request to take the prosecution over in the matter of genocide, committed on two of the described incidents in the request (defined in the first initiatory summons under 1. and 2. ) and "similar facts on other dates between 6 April 1994 and 17 July 1994 in the territory of Rwanda". This request was made through the Dutch Ambassador in Tanzania to the Minister of Justice, who authorized the public prosecutor's office by means of a letter dated 27 November 2006 to take over the criminal prosecution from the Tribunal. On 5 January 2007 the public prosecutor demanded (for the second time) that a judicial inquiry be initiated, also related to the suspicion of genocide (cf. § 2 under 5 above). In a reaction to a written request from the advocate general dated 23 November 2007, the Prosecutor of the Rwanda Tribunal notifies by email of 30 November 2007 among other things, that he had come to an understanding with the Dutch authorities with regards to the referral of the prosecution of the suspect with respect to genocide.

9.   As already indicated above (§ 2), in the initiatory writs of summons the suspect has been accused of a set of five serious offenses which allegedy were committed by him as Rwandan in Rwanda in the year 1994. Each of these charges have,on the one hand, been worded as war crime (or torture),and on the other hand as genocide. The court came to the conclusion that there was no jurisdiction for the facts formulated as genocide and consequently barred the public prosecutor's office from prosecuting those facts.

Assessment of the judgement

10.  The court of appeal reached the same decision as the court of first instance, though partly on somewhat different grounds. Partly with respect to that, the court of appeal will reverse the judgement whereof appealed. With some regularity hereafter, the court of appeal will adopt the considerations of the court of first instance by referring to the latter's considerations in its judgement. The judgement of the court of first instance has been published on "www.rechtspraak.nl" under LJN-number BB8462.

Original jurisdiction?

11. Original jurisdiction can, according to the court of first instance (grounds for judgement 15 through 27), be derived from the provisions in the sections 2 through 4 and 5 through 7 of the Criminal Code, or from section 5 of Genocide Convention Implementation Act or section 3 of the War Crimes Act. The appellate court -- just as the court, the public prosecutor and the defence -- finds that the regulations with respect to the charge of genocide lack applicability and so no jurisdiction can be derived from them. In that respect the appellate court refers to the above mentioned considerations of the court of first instance.
In the appellate trial the advocate general took the point of view that section 3 sub 2 of the War Crimes Act can constitute the basis for jurisdiction for this case, now that a Dutch interest is at issue.
According to the advocate general's opinion, maintaining the international legal order can and must be regarded as such a national interest.
In connection to this the advocate general points out among other things, that international arbitration of disputes for the larger part take place in the Netherlands.
In addition to above mentioned considerations of the court, especially grounds for judgement 22 through 25, the appellate court would like to point out that should the advocate general's point of view with respect to section 3 sub 2 of the War Crimes Act be followed, this could in fact lead to creating universal jurisdiction. In the view of the appellate court this broadening of jurisdiction and the many jurisdictional conflicts which would ensue from such an interpretation of the term 'Dutch interest' could not, in reason, have been the intention of the legislator.

12. Just as the court,(grounds for judgement 29 through 32) the appellate court finds that also no more jurisdiction can be derived from conduct charged before the International Crimes Act came into force (which in section 3 creates a secondary universal jurisdiction with respect to genocide). In connection with legal certainty, the legislator -- explicitely -- did not wish for a retrospective effect (ex post facto).

13.  Just as the court, (grounds for judgement 33 through 44) the appellate court finds that neither in international law a basis for jurisdiction can be found.

Secondary jurisdiction on the basis of section 4 Criminal Code?

14.  Finally jurisdiction could be derived -- in secondary or alternative form -- from the provisions of section 4a Criminal Code. The court of first instance came to the conclusion that this section lacks applicability in the current case.

15.  Section 4a, first subsection, of the Criminal Code (in force since 19 July 1985) reads:

The Dutch Criminal Code is applicable to anyone against whom prosecution was referred to The Netherlands from a foreign state on the basis of a convention from which the competence to prosecute ensues for The Netherlands.
In order to have secondary jurisdiction on the grounds of this provision, then it would be consequently required that:
a) mention can be made of a 'state'
b) who has orginal jurisdiction and
c) authorized prosecution has been referred by that state to the Netherlands and
d) a convention can be designated "from which the competence for prosecution for The Netherlands ensues".
16.  With respect to the requirement mentioned under point a), the appellate court judges, as does the court that -- in view of the status of the Rwanda Tribunal -- on itself there is much to say for a favourable, 'functional' explanation of this requirement which leads to regarding this Tribunal as 'state' within the meaning of section 4a Criminal Code. On the other hand however, there are opposing considerations which bring the appellate court -- other than the court -- to the conclusion that such a functional explanation may not be accepted, so that on that ground alone this section loses its applicability.
First of all, the court took the nature of the requirement at issue into consideration. In the opinion of the appellate court, a jurisdictional regulation can be compared (to a certain extent) to a penalization and a penalty standard; that is why such a regulation must meet the requirements of recognizability. To equate a body of the United Nations with a 'state' in the meaning of section 4a Criminal Code does not meet that requirement for recognizability. Just like the court (grounds for judgement 39) the appellate court points towards the grounds for cassation developed by N. Keijzer, Master of Laws, at the time advocate general, for the Supreme Court's judgement of 18 September 2001 on the December Murders¹. Moreover, legal assistance between states is based on reciprocity, and it is exactly this mutuality in the relationship between the Tribunal and The Netherlands which is largely absent, seen the 'vertical' character of that relation.
The appellate court furthermore points out that the institutional legislation of tribunals (see hereafter § 25 under c, the regulation in the Institutional Act for the Yugoslavia Tribunal has also been declared to be applicable to the Rwanda Tribunal) with respect to different competence regulations in the framework of international legal assistance stipulate, that they are applicable mutatis mutandis, because, according to the appellate court, they lack direct applicability with relation to the Tribunal.

In the Memorandum to the Act of the bill which led to this Act, the following is mentioned to this respect:
"Furthermore the Statute of the Tribunal obligates States to judicial and police cooperation with the Tribunal, in the scope of (…) collecting evidence (…) and transferring suspects to the Tribunal (article 29 Statute).

(...) In order to fully comply with these obligations a specific legislation is required. The existing legal regulations with respect to international criminal cooperation are tailored to interstate cooperation and not to cooperation with an international Tribunal. This regards the extradition and the so-called small legal assistance as well as the implementation of sentences from other judges than the Dutch. The present bill intends to offer an addition to the existing legislation."
Also with respect to transfer to the Rwanda Tribunal, the Memorandum of Explanation to the bill which led to the Institutional Act of the Rwanda Tribunal, mentions that an own regulation must be implemented in view of this variation on international legal assistance:
"In this respect it almost goes without saying that pursuant to section 2, first subsection of this bill,the regulated version for international legal assistance, unlike the classic extradition, provides for the surrender of a person claimed, to an international body, pursuant to a Resolution of the United Nations Security Council, and not, as usual, to another sovereign state. This justifies an own regulation, which is provided by this bill".
Finally, the appellate court establishes that next to the so-called Vienna Convention on Treaties ( 23 May 1969, Trb. 1977, 169), that concerns international written agreements between States, a second Vienna Convention was held about the law on treaties between States and international organizations or between international organizations themselves (Convention of 21 March 1986, Trb. 1987, 136). This fact also indicates that a difference should be made between organizations and States.

Although the appellate court agrees with the court (grounds for judgement 55) that at the time there was no thought of referral of prosecution to The Netherlands, this does not make for a forceful argument to presently apply a teleologic interpretation without sufficient basis. Even the circumstance shown in the decision of the Rwanda Tribunal in the (comparable) Bagaragaza case that the Dutch gouvernment took the view that the Rwanda Tribunal does fall under the term 'state' in section 4a Criminal Code, does not bring the appellate court to a different judgement.

Although, as mentioned before, the appellate court finds that on this ground section 4a Criminal Code lacks applicability, the appellate court feels it is advisable to also discuss the criteria for application of this section mentioned in § 15 under b, c en d.

17. Just like the court, the appellate court finds that the jurisdiction and thus the prosecution competence of the Rwanda Tribunal, or its Prosecutor, in the present case, on the basis of (specifically) the articles 1 and 2 of the Statute of the Tribunal established by resolution 955(1994) on 8 November 1994 by the Security Council of the United Nations (hereinafter to be called: the Statute), is without any doubt, a fact. So the above (see § 15) under b stated condition for application of section 4a Criminal Code has thus been met.

18. The above (see § 15) under c mentioned condition of section 4a Criminal Code has also been met now the appellate court -- along with the court -- does not have any doubts either about the competence of the Prosecutor of the Tribunal to refer the prosecution in this case, in view of his complete and exclusive prosecution competence as body of the Tribunal (based on the articles 10 and 15, second paragraph, of the Statute). The appellate court thereby also considered that in the Tribunal's described procedure in article 11bis of the 'Rules of Procedure and Evidence' (RPE) for referral of prosecution according to the phrasing only concerns cases which already have been brought before the Tribunal.

In his request dated 29 September 2006 for referral of the prosecution in the present case, the Prosecutor also mentioned that the referral of such 'un-indicted cases' lies within his competence on the basis of the Statute. The appellate court finds no reason to question this information, also in view of paragraph 39 of the letter dated 29 May 2006 of the President of the Tribunal to the Security Council of the United Nations, about the Completion Strategy of the Tribunal.

Referral based on convention?

19. The conclusion can be drawn that referral of prosecution is only one of the forms known to international legal assistance in criminal matters, which in itself does not require a conventional basis. This requirement indeed does apply, however, as shown in section 4a of the Criminal Code, if The Netherlands has no original jurisdiction and the referral of prosecution must create (secondary) jurisdiction.; the court (grounds for judgement 61 through 65) ruled -- also based on the legal history the court gave -- that certain requirements of specificity must be demanded of a convention which carries this legal consequence: "the competence to prosecute and bring to trial must ensue from a convention including explicit agreements (italics appellate court) about referral of prosecution rights and at least a regulation must have been set up with respect to the cases where referral is possible" (grounds for judgement 65).

20. The appellate court shares the view of the court that some specificity is required. In any case general agreements or declarations of intent about (mutual) cooperation in criminal matters can not be deemed sufficient to create jurisdiction, also in view of the large interest attached to preventing jurisdiction conflicts. As stated before, the requirements demanded from a jurisdiction creating referral of prosecution must be more severe than those, which apply to referral of prosecution alone (and to which the conventional requirement does not apply).
6 Parliamentary documents II, 1979-1980, 15 972, nos. 1-3, p. 8
In this respect, the appellate court also draws attention to the statement made in the Explanatory Memorandum for the bill that led to the implementation of section 4a Criminal Code:
"Additions to the rules of the Dutch Criminal laws with respect to penalization and liability to prosecution cannot be found in the prosposed stipulations. To settle these subjects in view of international referral of prosecutions, a convention would be the appropriate place. That is also the case for the expansion of the competence of the Dutch criminal court judge, for which not the newly to be inserted section 4a of the Criminal Code, but the appropriate convention forms the basis."
As it is, the public prosecutor is correct in pointing out that the conventions mentioned in section 552hh of the Code of Criminal Procedure (which in the case of refusal to extradite, demand the initiation of prosecution by referring the case to the prosecutions authority, according to the proverb "aut dedere aut judicare") do not contain a detailed system of rules.But the States involved are obliged in view of that possible trial, to make sure that the competence of prosecution for the facts meant in those conventions is guaranteed, for which purpose the indicated section was inserted into the Code of Criminal Procedure. Now that the conventions only relate to (a limited group) of specific offences, a certain limitation is also encountered in them (namely with respect to 'the cases to which' the regulation applies).

In this respect, the appellate court indicates the provision in article 4 of the United Nations Convention of 20 December 1988, Trb. 1990, 94, against illicit trade in drugs and psychotropic substances. That article prescribes with respect to certain situations (for example should the fact have been committed on the territory of the state which is a party to the convention, or should the suspect not be extradited because of being an own national) that jurisdiction is established. In other cases, for example when the suspect is in the territory of a state who does not wish to extradite him, that state is competent, but surely not in every case obligated to establish jurisdiction. This convention has not been included in 552hh Code of Criminal Procedure, as the appellate court deducts from the parliamentary history of the Sanctioning Act in question , because in this respect The Netherlands do not accept a secondary jurisdiction (the mandatory establishment of jurisdiction by the convention has already been provided for in the regulation of jurisdiction in the Criminal Code).

In other words: Secondary jurisdiction must not only have a basis in a convention, but the Dutch legislator must also decide to either make use or not of an optional competence. That fact compels the judge to even more restraint in his interpretation of the rules of law.

21. The prosecution also draws attention to the formulation of section 4a: the competence of prosecution must "ensue" from the convention, which, following the explanatory memorandum of the bill, the prosecution paraphrases as 'result from'.

Whatever the case may be of this linguistical paraphrasing, the appellate court also deduces from the quoted passage in § 20 from the Explanatory Memorandum that a convention in the sense of section 4a Criminal Code not only must contain a regulation of referral of prosecution, but also must explicitely provide in the (secondary) jurisdiction.

22. The prosecution also referred to a) the Charter of the United Nations in connection with the Statute of the Rwanda Tribunal (and the relevant resolutions and the Completion Strategy) and b) the Genocide Convention,as being a convention in the sense of section 4a of the Criminal Code, "from which the prosecution competence ... ensues".

The Charter of the United Nations c.a.

23.  With respect to the Charter of the United Nations, the Statute of the Rwanda Tribunal and the applicable Rules of Procedure and Evidence the following can be established.
Chapter VII of the Charter of the United Nations also forms, according to Resolution 955 (1994) a basis for the establishment of the Rwanda Tribunal, which underlines the weight of that body and the dominant obligations of states to comply with the Charter.
The prosecution was correct in pointing this out, thereby referring to the articles 25 and 103 of the Charter, which read as follows:
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 103
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
But those obligations should then be sufficiently articulated, as considered before. The Charter does not contain a blank authorization to just randomly make a demand on a state. The formulation of the mentioned Resolution also proves this under point 2., referring to the obligations which result from the Resolution and the Statute of the Rwanda Tribunal:
"Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 28 of the Statute... ".
24.  In this respect the appellate court points out a number of more specific stipulations:

a) The Statute of the Rwanda Tribunal stipulates among other things:
Article 8: Concurrent Jurisdiction
1.  The International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of the neighbouring States, between 1 January 1994 and 31 December 1994.
2.  The International Tribunal for Rwanda shall have the primacy over the national courts of all States. At any stage of the procedure, the International Tribunal for Rwanda may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal for Rwanda.

Article 28: Cooperation and Judicial Assistance
1.  States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

2.  States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to:
(a) The identification and location of persons;
(b) The taking of testimony and the production of evidence;
(c) The service of documents;
(d) The arrest or detention of persons;
(e) The surrender or the transfer of the accused to the International Tribunal for Rwanda.
b) The Rules of Procedure and Evidence stipulate in line 11 bis among other things:
Rule 11 bis: Referral of the Indictment to another Court
(A) If an indictment has been confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State.
(B) The Trial Chamber may order such referral proprio motu or at the request of the Prosecutor, after having given to the Prosecutor and, where the accused is in the custody of the Tribunal, the accused, the opportunity to be heard.
c) For the Dutch legislation the Establishment Act Yugoslavia Tribunal is especially important (see note 2). This Act, of which the following mentioned stipulations also apply to the Rwanda Tribunal, stipulates among other things:
Article 2.
Upon request of the Tribunal persons may be transferred for prosecution and trial for punishable facts of which the Tribunal pursuant to its Statute is competent to take cognizance of.

Article 9.
1. Requests of the Tribunal for any form of legal assistance, whether or not addressed to a specified judicial or police body in The Netherlands, will be acceded to by required action as much as possible.

2.  The sections 552i,552j,552n,552o through 552q -- with the exception of the reference in section 552p, fourth subsection, to section 552d, second subsection -- of the Code of Criminal Procedure and section 51, first and fourth subsection, of the Extradition Act are mutatis mutandis applicable.
3.  Representatives of the Tribunal will be permitted upon request to be present at the execution of the requests,and to have questions presented to the persons involved in the execution of the requests, as meant in the first subsection.
4.  The Dutch authorities in charge of the execution of the requests for legal assistance are responsible for the safety of the persons involved therin and are authorized to that purpose to set conditions to the manner in which requests for legal assistance are executed.

Section 11.
1. Upon request of the Tribunal it is possible to enforce the imposed final and conclusive sentence of imprisonment by the Tribunal, in The Netherlands.
2. Upon request of the Tribunal the person sentenced may to that end be provisionally arrested.
3. The public prosecutor or deputy public prosecutor of The Hague is authorized to order the provisional arrest.
4. The sections 9, second subsection through fifth subsection, 10, 11, first subsection and second subsection, under a, and 12 of the sentence transfer enforcement Act are mutatis mutandis applicable.
5. Upon request of the Tribunal the issued orders at final and conclusive sentence by the Tribunal for refund as meant in section 24, third subsection, of the Statute , can be executed in The Netherlands. The sections 13, 13a, 13b and 13d through 13f -- with the exception of the reference in section 13d, second subsection, to section 552d, second subsection, of the Code of Criminal Procedure -- of the sentence transfer enforcement Act are mutatis mutandis applicable.
25. From these stipulations the following conclusions may be drawn according to the appellate court:
a) at referral of prosecution to the Rwanda Tribunal a request to that end must be acceded to without any reservation, while referral by the Tribunal according to Rule 11 bis RPE in the under (iii) mentioned situation not only is dependent on the willingness of the requested state, but also of the existence of jurisdiction.
That jurisdiction issue is extensively assessed (with other issues) by the Rwanda Tribunal before a request for referral to a state becomes effective. In this respect, the appellate court points towards the decision of the Trial Chamber III of 19 May 2006 , in which the Tribunal refused to refer prosecution of Bagaragaza to Norway because Norway did not have 'jurisdiction' ratione materiae (in the sense of penalization of genocide) and could 'only' prosecute on the basis of general offences. Norway did (according to note 11 of this decision) ratify the Genocide Convention, but had not implemented it in its national legislation.
The appellate court deduces from this that referral of prosecution of the Tribunal on the basis of Rule 11 bis RPE can only take place if the state requested thereto has independent (original) jurisdiction. There is no reason to assume that the Prosecutor would not be bound to this condition for (a request for) referral in the event that a case is not one brought before the Tribunal;

b) Article 28 of the Statute obligates states to cooperate with the Tribunal and enunciatively mentions in the second paragraph a number of requests for legal assistance to which, without delay, must be acceded. Along with the court (grounds for judgement 75) the appellate court finds that these obligations according to the wordings in the article are keyed to investigation and prosecution by the Tribunal itself.
The prescription of Rule 11 bis RPE relates to the referral of prosecution to a state and insofar does not encounter a basis in article 28 of the Statute. From the obvious connection with the hereafter (§ 26) mentioned Completion Stategy in compliance with the instruction of the Security Council the appellate court deduces that Rule 11bis RPE finds direct basis in the Charter. But this does not lead to the Prosecutor having more competence as a result of that Rule or that connected obligations for states should be deduced from it than those which follow from the wording of that Rule. And in Rule 11bis A, under(iii), the explicit starting point is -- as already has been established above -- the referral to a state that already has (original) jurisdiction.
For that reason according to the appellate court it cannot be said that via the Charter of the United Nations, prescriptions in the Statute of the Rwanda Tribunal and/or the Rules of Procedure and Evidence, the request in the present case for referral of prosecution made by the Prosecutor results in an conventional legal duty for The Netherlands which makes this request like a request as meant in section 4a Criminal Code.
The appellate court would in this respect like to refer to the 'short paper' submitted by the advocate general during the appeals trial, enclosed as annex to above mentioned email message from the Prosecutor of 30 November 2007 (see § 8), with respect to the relationship between article 28 of the Statute of the Rwanda Tribunal and article 11 bis of the Rules of Procedure and Evidence. In this paper attention is given among other things to the case law of the Appeals Chamber (of the Yugoslavia Tribunal) with respect to these articles. From this case law, the deduction can be made that the Appeals Chamber holds the opinion that no obligation exists for the states, neither on the basis of article 28 of the Statute of the Tribunal, nor on the basis of article 11bis of the Rules of Procedure and Evidence, for referral of prosecution by the Tribunal.
c) In the prior mentioned Establishing Act an attempt was made to "translate" the ensuing obligations from the Statute of the Rwanda Tribunal, into the Dutch situation, taking the other Dutch legislation into account. In this way, the Establishing Act drew a bridge between the extradition laws, the laws governing the transfer of sentence enforcement and the regulation with respect to the (general) international small legal assistance in criminal matters. The appellate court -- like the court (grounds for judgement 77) -- cannot conclude otherwise than that the Dutch legislator (intentionally or by mistake) ommitted to regulate the referral of prosecution to The Netherlands. The latter could (other than at the referral for execution of the Tribunal decisions ) also still take place without a convention, but then without the case law expansion provided for in section 4a Criminal Code.
Just as the court, the appellate court is of the opinion that the judge is not competent to fill this -- at present apparently so experienced by the prosecutor's office -- void by means of in this respect also only teleological interpretation.

26. The Prosecutor's request is prompted according to the explanation by the so-called Completion Strategy of the Rwanda Tribunal, which is aimed at -- in accordance with instruction of the Security Council (Resolution 1503 (2003) of 28 August 2003) -- concentrating on the "most senior leaders suspected of being most responsible" for the crimes in regards of which the Tribunal is competent, finalizing the proceedings not later than 2010 and for that reason to transfer the "intermediate- and lower-rank accused" to "competent national jurisdictions". So also the text of this Resolution cannot create any relevant obligation, now that The Netherlands does not have the required (original) jurisdiction (competence).

The Genocide Convention

27. With respect to the jurisdiction which can be based on the Genocide Convention, especially the articles V and VI of that convention and their transformation to article 5 of the Genocide Convention Implementations Act are important.
Convention on the Prevention and Punishment of the Crime of Genocide

Article V
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Article VI
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Genocide Convention Implementations Act, article 5
1. Dutch criminal law is applicable to the Dutchman, who outside of the Netherlands is guilty of:
1° a crime described in the sections 1 and 2 of this Act;
2º the crime described in section 131 of the Criminal Code, if the crime spoken of in that section, is a crime as meant in the sections 1 and 2 of this Act.
2. Prosecution can also take place, if the suspect only after commission of the fact, becomes a Dutch national.
The appellate court establishes that the Genocide Convention on its own, in view of the stipulations in article V, gives complete room to an ample, even (secondary) universal establishment of jurisdiction, just as the International Court of Justice decided in its judgement of 11 July 1996 , § 31:
"The Court sees nothing in this provision which would make the applicability of the Convention subject to the condition that the acts contemplated by it should have been committed within the framework of a particular type of conflict. The contracting parties expressly state therein their willingness to consider genocide as "a crime under international law", which they must prevent and punish independently of the context "of peace" or "of war" in which it takes place. In the view of the Court, this means that the Convention is applicable, without reference to the circumstances linked to the domestic or international nature of the conflict, provided the acts to which it refers in Articles II and III have been perpetrated. In other words, irrespective of the nature of the conflict forming the background to such acts, the obligations of prevention and punishment which are incumbent upon the States parties to the Convention remain identical.
As regards the question whether Yugoslavia took part - directly or indirectly - in the conflict at issue, the Court would merely note that the Parties have radically differing viewpoints in this respect and that it cannot, at this stage in the proceedings, settle this question, which clearly belongs to the merits.
Lastly, as to the territorial problems linked to the application of the Convention, the Court would point out that the only provision relevant to this, Article VI, merely provides for persons accused of one of the acts prohibited by the Convention to "be tried by a competent tribunal of the State in the territory of which the act was committed . . .". It would also recall its understanding of the object and purpose of the Convention, as set out in its Opinion of 28 May 1951, cited above:
"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (1) of the General Assembly, December 11 th 1946).

The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention)."
(I.C.J. Reports 1951, p. 23.)
It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention."

At the time, the legislator, however, chose 'only' to apply an active personality principle to the Implementations Act. It is important to establish that by doing that, The Netherlands did not underestimate its conventional obligations, as can be deduced from the recent decision of the International Court of Justice of 26 February 2007 . Paragraph 442 of this decision reads:
"The Court would first recall that the genocide in Srebrenica, the commission of which it has established above, was not carried out in the Respondent's territory. It concludes from this that the Respondent cannot be charged with not having tried before its own courts those accused of having participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of having committed one of the other acts mentioned in Article III of the Convention in connection with the Srebrenica genocide. Even if Serbian domestic law granted jurisdiction to its criminal courts to try those accused, and even supposing such proceedings were compatible with Serbia's other international obligations, inter alia its obligation to co-operate with the ICTY, to which the Court will revert below, an obligation to try the perpetrators of the Srebrenica massacre in Serbia's domestic courts cannot be deduced from Article VI. Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so."
The prior meant (secundary) universal jurisdiction for (among other things) genocide has, in the meantime, been laid down in section 3 of the International Crimes Act, which is in force since 1 October 2003, as indicated (§ 12) before. That paragraph also established that the legislator at the time intentionally chose not to give retroactive force to this regulation. In connection to this, the appellate court also points to the answer of the Minister of Justice to Paliamentary questions asked as a result of the sentence of the court of first instance in the current case:
"The court's consideration that she is faced with a void in the existing regulations,which she cannot solve by means of a reasonable interpretation of the law, is based on the phrasing of above mentioned multilateral conventions. To the extent that the court considers that at the time of the indicted facts there was no national legal provision applicable which provided for jurisdiction with respect to genocide, it must be stated that this non-applicability results from the choice of the Dutch legislator and the position of the international law at the time not to establish broad extraterritorial jurisdiction.
Currently The Netherlands has, on the basis of the International Crimes Act, which came into force on 1 October 2003, a broader jurisdiction regulation for, among other things, the crime of genocide. The legislator explicitely chose, at the realization of this act, not to award retroactive force to this broadend jurisdiction regulation."
28. In view of the manner in which our country implemented the Genocide Convention, the appellate court is not able to see that this convention could now -- via section 4a Criminal Code -- create jurisdiction. The appellate court again -- perhaps unnecessarily -- points out that the legislator has a choice at the implementation of conventions as to what extent he wishes to implement the optional obligations to the Dutch legislation.

'Mini-convention'?

29. Ultimately the question is whether maybe in the current case another agreement could result in a convention in the meaning of section 4a Criminal Code.
In the above in § 8 described correspondence of the Prosecutor of the Rwanda Tribunal with organs of the State of the Netherlands there are in itself certain reference points to be found for the supposition that both organs have made agreements about the referral of the current case, so that the question could arise whether it was the intention to enter into a 'convention' (in a substantive sense).

The prosecutor's office is of the opinion that this question can be answered affirmatively now that there is consensus and there is sufficient stipulation about what the subject of the agreement is. In the prosecutor's office view, there are grounds present to speak of a convention in the sense of section 4a CC. To support this point of view, the prosecutor's office refers inter alia to the requested advice of 30 November van 2007, given by K. Brölmann, senior lecturer International Law at the University of Amsterdam. In this advice it is inter alia concluded that -- based on the conventional freedom of form - the international law does not oppose to viewing the correspondence between the Prosecutor of the Rwanda Tribunal and the Minister of Justice as an international legal agreement or 'convention' in the sense of international law. Brölmann reaches this conclusion on the basis of the following: The agreement between the Dutch Minister and the Prosecutor of the Tribunal rests on (i) mutual communications; (ii) containing legal effect; (iii) between international legal entities, (iv) represented by (in accordance with relevant internal laws) 'organs' who from a perspective of international law may be deemed to dispose of competence to enter into conventions. With this, according to Brölmann, the agreement conforms to the definition of 'convention'.

Furthermore, the prosecutor's office draws attention to the reaction of the Prosecutor of the Rwanda Tribunal as shown in § 8. In answer to the written request of the advocate general, the Prosecutor gave the information that an agreement was reached with the Dutch authorities concerning the transfer of prosecution of the suspect.

The Prosecutor states inter alia in the message:
"..there was an agreement between the Prosecutor of the ICTR and authorities in the Netherlands concerning the transfer of the case against [suspect] as far as proceedings for the crimes of genocide are concerned".
and furthermore:
"In the opinion of the ICTR Prosecutor the agreement was binding upon delivery of the assent to the Request by the Minister of Justice of the Kingdom of the Netherlands."
The request of the Prosecutor and the letter of the Minister of Justice to the public prosecutor are, according to the Ministry of Foreign Affairs on the other hand, not to be designated as a convention in the sense of international law. This point of view, as indicated in a letter of 22 November 2007 from the Legal Advisor, Head
of the International Laws Department of the Ministry of Foreign Affairs to the advocate general, is based inter alia on the consideration that written consensus forms the basis of a convention in the sense of international law. Now that in the present case the written request of the Prosecutor of the Rwanda Tribunal to refer prosecution did not result in a written reaction from the part of the Dutch authorities, this requirement was not met.

The court considers that in the above in paragraph 8 described correspondence between the Prosecutor of the Rwanda Tribunal and organs of the State of the Netherlands in itself certain points of reference can be found for the supposition that both organs have made arragements about the transfer of the current case.
Now that the appellate court sees no reason to doubt the authority of the Prosecutor to make those kind of arrangments, the appellate court assumes that in this manner an -- extremely form-free -- convention was entered upon between the Prosecutor and the Dutch Minister of Justice.

Subsequently the question arises whether such a -- form-free -- convention can be regarded as a convention in the sense of section 4a CC. The appellate court answers this question negatively. To that end, the appellate court considers inter alia that section 4a CC according to the opinion of the appellate court, relates to a general regulation which inter alia meets the requirements of recognizability. Those have not -- as has been considered -- been met.

Also, article 91 of the Constitution stands in the way of the Kingdom being bound by such a convention now that the formfree convention meant cannot be placed among the cases, for which no approval is required.

The appellate court furthermore considers that the regulations of jurisdiction form an explicit and closed system with a high-public-order standard.
In view of article 94 of the Constitution it is not possible to deviate from this on the basis of unwritten law, but only on the basis of overall bounding stipulations of conventions and of decisions of international organizations.

Things might have been different, if the United Nations had concluded a treaty with the Dutch authorities in which had been laid down that in the framework of the Completion Strategy, the prosecution of suspects whose case had not (yet) been brought before the Tribunal,could in consultation with the Netherlands,be transferred to the Netherlands, also for the cases for which the Netherlands has no ogininal jurisdicion.

Conclusion

30.  The above leads the appellate court to the following conclusion.

With respect to the regulation of jurisdiction in the case of genocide a development in the international and of national opinions have taken place in the past decades, which resulted in establishing a broad jurisdiction regulation in the International Crimes Act, to which however, no retroactive force has been assigned.

The circumstances departed from at the establishment legislation for the Tribunals, have been fundamentally changed by the prescribed Completion Strategy of the Tribunals and have led to the arising necessity to take over criminal cases of (in this case) the Rwanda Tribunal. The appellate court has had to establish however that the Dutch legal instruments on the point of secondary jurisdiction are not adequate.

Inasmuch as the appellate court sympathizes with the wish not to let the most serious of crimes, which is the case at present, go unretaliated (as is emphasized in the Explanatory Memorandum of the International Crimes Act), that wish can however cannot result in sufficient basis for jurisdiction in the matter of genocide. The appellate court stipulates thereby that the above considerations have no relation to the (continued) prosecution of the same complex of fact in the form of war crimes or torture.

31.  The above must result in declaring the prosecutor's office barred from prosecution of the suspect in the matter of genocide.

DECISION

The appellate court:

Overturns the judgement appealed against and renders new judgement.

Declares the prosecutor's office barred from prosecution of the suspect for count 1 on the summons with case number 09/750007-07.



This judgement has been rendered by G.P.A. Aler,Master of Laws, G. Oosterhof, Master of Laws and C.M. le Clercq-Meijer,Master of Laws, in the presence of the registrar . M.C. Zuidweg, Master of Laws.

It was pronounced in open appellate court on 17 December 2007.

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