scholarly journals International Crimes before Dutch Courts: Recent Developments

2007 ◽  
Vol 20 (4) ◽  
pp. 895-908 ◽  
Author(s):  
ELIES VAN SLIEDREGT
Keyword(s):  
War Crimes ◽  
Armed Conflicts ◽  
Universal Jurisdiction ◽  
European Convention ◽  
District Court ◽  
Vienna Convention ◽  
Residence Permit ◽  
Appeal Court ◽  
The Hague ◽  
The Right

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.

Briefly Noted

2020 ◽  
Vol 59 (3) ◽  
pp. 554-557
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Personal Data ◽  
European Convention ◽  
District Court ◽  
Political Rights ◽  
System Risk ◽  
The Hague ◽  
Human Rights Norms ◽  
The Right

On February 5, 2020, the District Court of the Hague in the Netherlands issued a judgment (currently only available in Dutch) that the U.N. Special Rapporteur on extreme poverty and human rights, Philip Alston, has hailed as a "clear victory for all those who are justifiably concerned about the serious threats digital welfare systems pose for human rights." N.J.C.M. et al. v. The Netherlands involved a challenge to the use of a benefits fraud detection tool called "System Risk Indication" or SyRI, which Mr. Alston had criticized in an amicus curie brief for the Court as "pos[ing] significant potential threats to human rights, in particular for the poorest in society" (para. 38). The District Court of the Hague agreed, ordering that the use of SyRI be ceased because it violated international human rights norms. In particular, the Court's human rights evaluation focused on the right to respect for privacy in Article 8 of the European Convention on Human Rights and Article 17 of the International Covenant on Civil and Political Rights (paras. 6.20-6.26) and the right to protection of personal data under EU law (paras. 6.27-6.36). The judgment can still be appealed.

Amnesties and international humanitarian law: Purpose and scope

2018 ◽  
Vol 101 (910) ◽  
pp. 357-363
Keyword(s):  
Armed Conflict ◽  
War Crimes ◽  
Armed Conflicts ◽  
Universal Jurisdiction ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Additional Protocol ◽  
Geneva Conventions

States party to the 1949 Geneva Conventions and Additional Protocol I of 1977 have an obligation to take measures necessary to suppress all acts contrary to their provisions. Moreover, States must investigate war crimes allegedly committed by their nationals or on their territory, and other war crimes over which they have jurisdiction, such as on the basis of universal jurisdiction, and, if appropriate, prosecute the suspects. In accordance with these obligations and the limits they impose, States may adopt certain measures during and in the aftermath of armed conflicts to promote reconciliation and peace, one of which is amnesties. International humanitarian law (IHL) contains rules pertaining to the granting and scope of amnesties. Specifically, Article 6(5) of Protocol II additional to the Geneva Conventions relating to non-international armed conflicts (NIACs) provides that, at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict. Importantly, under customary IHL (as identified in Rule 159 of the ICRC customary IHL study), this excludes persons suspected of, accused of, or sentenced for war crimes in NIACs.

scholarly journals The Right to Punishment for International Crimes

2018 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Crimes Against Humanity ◽  
District Court ◽  
Human Rights Law ◽  
German Government ◽  
Subtle Change ◽  
International Crimes ◽  
European Court ◽  
The Right

On October 1, 2002, Magnus Gäfgen was taken into custody by the Frankfurt police in connection with the kidnapping of a young boy held for ransom. The police threatened Gäfgen with various forms of torture unless he divulged the location of the boy. Gäfgen quickly relented and led the police to the boy, who was already dead. Gäfgen was convicted of murder and the police were convicted of coercion. However, the district court concluded that the police, though culpable, were not appropriate subjects of punishment. Gäfgen, unhappy that his torturers were not punished, filed a case against Germany at the European Court of Human Rights (ECHR), arguing that Germany's failure to punish his torturers violated his human rights. The ECHR concluded that Gäfgen was right--the German government was obligated to punish perpetrators of torture, and by failing to do so adequately, Germany violated Gäfgen's human rights.The goal of this chapter is to show that the argument in Gäfgen is generalizable to other contexts. Although the case arose from a particular procedural posture, there is little reason to suspect that the arguments in Gäfgen will not hold for other crimes as well. At the very least, these arguments can be extended, without logical disruption, to other international crimes that states are under a legal obligation to criminalize, such as war crimes, crimes against humanity, and genocide. Moreover, if the structure of these arguments is conceptually sound, in theory they should apply outside of the European context, unless the argument is based on a particular right that is only protected by the European Convention and not by international law.This subtle change in emphasis -- moving from punishment as a license to punishment as a legal requirement -- has profound consequences for the operation of international criminal justice. States and international tribunals are required to punish perpetrators as a matter of human rights law, and their failure to follow through on this obligation violates not just some vague or inchoate ergo omnes obligation, it also violates an obligation owed directly to the victims of that particular atrocity. This applies not just when the perpetrators are not punished at all but also when the perpetrators, like in Gäfgen's case, are not punished severely enough.

Moving from Nuremberg to The Hague

2021 ◽  
pp. 39-66
Author(s):  
Theodor Meron
Keyword(s):  
World War Ii ◽  
Criminal Law ◽  
International Criminal ◽  
Far East ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
International Criminal Tribunals ◽  
The Hague

This chapter examines how, appalled by the glaring impunity for gross violations of international humanitarian law committed in the course of the Yugoslavia fragmentation wars in the early 1990s, the author was among those who called for the establishment of a war crimes tribunal for the former Yugoslavia. A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The chapter then looks at the inadequacy of international humanitarian and criminal law recognized as applicable to non-international armed conflicts, focusing on the case of rape. It considers the establishment of the modern international criminal tribunals at The Hague and Arusha. The chapter also studies the ICTY, the ICTR and the International Criminal Court (ICC).

scholarly journals Dutch Criminal Justice for Ethiopian War Crimes

2019 ◽  
Vol 17 (3) ◽  
pp. 633-659
Author(s):  
Lachezar Yanev
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
War Crimes ◽  
Universal Jurisdiction ◽  
International Criminal Law ◽  
Legislation And Jurisprudence ◽  
Legal Standards ◽  
International Crimes ◽  
The Hague ◽  
Principle Of Legality

Abstract The past few years have witnessed a proliferation of universal jurisdiction proceedings in Europe, many of which concern asylum seekers suspected of committing international crimes in Syria and the wider region. Alongside the known practical challenges of such trials, these trials also raise a range of normative questions regarding inter alia the scope of universal jurisdiction and the applicable legal standards in such proceedings. This article unpacks several such questions through the lens of a recent Dutch case in which a former refugee, who was granted asylum in The Netherlands and later obtained Dutch citizenship, was tried and convicted by a local court in The Hague of war crimes committed in Ethiopia four decades ago. The judges used an amalgam of Dutch and (customary) international criminal law to convict the accused. They defined the charged war crimes in strict conformity with the standards established in international legislation and jurisprudence, relied exclusively on Dutch law to define one of the applied modes of criminal liability (co-perpetration), and synthesized Dutch and international law to define the other (command responsibility). To what extent does the notion of universal jurisdiction accommodate such choices of law, and how is the use of domestic criminal law on modes of liability in such proceedings compatible with the principle of legality?

scholarly journals Jurisdiction and Combatant’s Privilege in the MH17 Trial: Treading the Line Between Domestic and International Criminal Justice

2021 ◽  
Author(s):  
Lachezar Yanev
Keyword(s):  
International Law ◽  
International Criminal ◽  
Armed Forces ◽  
War Crimes ◽  
Criminal Code ◽  
District Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Questions ◽  
The Hague

AbstractThis article focuses on the MH17 Trial that is currently underway in the Netherlands, dealing with the shooting down of a civilian aircraft over Eastern Ukraine and the resulting deaths of all 298 persons on board. Two legal questions arising from the prosecutorial strategy to charge the four accused with ‘ordinary’ crimes under the Dutch Criminal Code—instead of with war crimes—are studied here. First, the jurisdictional basis on which the District Court of The Hague is trying MH17, and its effect on the applicable laws, is examined. It is argued that, contrary to what the Prosecution has submitted, jurisdiction over the killing of the 93 non-Dutch nationals on board of flight MH17 can only be established on the basis of the less known title of delegated (representative) jurisdiction: a conclusion that also brings certain legal requirements. Second, this paper analyzes the way the MH17 Prosecutor defined the notion of ‘combatant’s privilege’ under international humanitarian law and his arguments for rejecting a combatant status for the separatist armed forces that shot down flight MH17 over Eastern Ukraine. All this analysis is then used to explain why it was indeed more sensible for the Prosecution to charge the four accused with murder and intentionally causing an aircraft to crash under Dutch criminal law, than with war crimes under international law.

Reforming Defence Rights in French Police Custody: A Coming Together in Europe?

2012 ◽  
Vol 16 (2) ◽  
pp. 153-174
Author(s):  
Aude Dorange ◽  
Stewart Field
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
The European Union ◽  
Police Custody ◽  
Appeal Court ◽  
European Court ◽  
Major Reform ◽  
The Right ◽  
Criminal Matters

In April 2011 a major reform of the law regulating the police custody phase ( la garde à vue) was adopted by the French Parliament and implemented in June 2011. The new legislation confirms the right of immediate access to a lawyer in police custody and establishes a right to have that lawyer present during interrogation. This follows a series of decisions in 2010 by the European Court of Human Rights, the French Constitutional ‘Court’ ( Conseil constitutionnel) and the final appeal court with jurisdiction over criminal matters ( la Chambre criminelle de la Cour de cassation). These decisions declared existing limits to defence rights in the French police custody phase to be contrary to the European Convention on Human Rights, unconstitutional and unlawful. These developments have been much discussed in France (both positively and negatively) because they seem to signal a further shift away from France's inquisitorial tradition in criminal process. They can also be seen as part of a coming together of defence rights across Europe prompted by the European Union and the European Convention on Human Rights.

The Legal Characterization of Facts During the Red Terror in Ethiopia: Genocide, War Crimes, or Crimes Against Humanity?

2020 ◽  
pp. 1-20
Author(s):  
Kassahun Molla Yilma
Keyword(s):  
War Crimes ◽  
Crimes Against Humanity ◽  
District Court ◽  
High Court ◽  
Immigration Laws ◽  
Unique Approach ◽  
The Hague ◽  
Best Fit ◽  
The U.S

Abstract Multiple countries have investigated and prosecuted the perpetrators of crimes committed during the Red Terror in Ethiopia. In bringing the perpetrators to account, each country adopted a unique approach, resulting in a variation in the situation’s legal characterization. The charges against the Red Terror perpetrators in the U.S. were based on violations of immigration laws, while the perpetrators in Ethiopia were charged and convicted of the crime of genocide. In contrast, one suspect, who had already been convicted of genocide by the Ethiopian High Court, has recently been convicted of war crimes by the Hague District Court, the Netherlands. The article investigates whether the Red Terror crimes constitute war crimes, genocide, or crimes against humanity. Accordingly, this analysis shows that while countries have used genocide or war crimes when prosecuting crimes perpetrated during the Red Terror, the best fit to the situation’s legal characterization would be crimes against humanity.

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