Uitspraak
SUPREME COURT OF THE NETHERLANDS
CRIMINAL DIVISION
Number22/04694
Date22 April 2025
JUDGMENT
on the appeal in cassation against a judgment of the Court of Appeal of The Hague of 6 December 2022, number 22-001283-21, in the criminal case
against
[accused] ,
born in [place of birth] , on [date of birth] 1990,
hereinafter: the accused.
1.Course of the proceedings in cassation
The appeals were filed by the accused and the Public Prosecution Service.
T.M.D. Buruma and K.J. Zeegers, both lawyers practising in Amsterdam, submitted written grounds for cassation on behalf of the accused. The Public Prosecution Service also submitted written grounds for cassation.
The counsel of the accused contested the Public Prosecution Service's appeal.
Advocate General M.E. van Wees advised that the contested judgment be set aside, but only as regards the judicial finding of fact with regard to Count 2 and the sentence, and that the case be remitted to the Court of Appeal of The Hague so that the case could be adjudicated and settled anew in that respect.
2.The essence of the case
The Advocate General summarised in his advisory opinion at 2.1 what this case is about:
"The accused came to Germany from Syria on 11 November 2015 to seek asylum. The accused left Germany on 7 December 2015. When the accused arrived in the Netherlands in October 2019, once again with the intention of seeking asylum, Dutch police received word from the German authorities that the accused was under an alert. The suspicion had arisen in Germany that the accused had been active as a fighter and regional leader of Ahrar al-Sham in Syria. A criminal investigation was subsequently initiated against the accused in the Netherlands. The Dutch police secured a video from the website known as YouTube on 9 October 2019. The Court of Appeal determined that the video first shows the logo of Ahrar al-Sham and that this video additionally contains footage of slain government soldiers surrounded by Ahrar al-Sham fighters. These fighters are shouting slogans, chanting and commenting on their own success and the defeat of the government soldiers. The slain soldiers are being verbally abused and insulted, and they are being spat at. One of the fighters is seen planting his foot on one of the bodies for a moment. The Court of Appeal ruled that the accused appears in this video as the man who is primarily speaking, calling the deceased fighters dogs and carcasses and moving his foot towards a body."
Briefly put, the accused has been charged at Count 1 with being guilty of outrages upon personal dignity of one or more persons in a non-international armed conflict, which is punishable under Article 6(1), opening words, and under c of the International Crimes Act. The Court of Appeal acquitted the accused of this. In that context, the Court of Appeal held that the actions of the accused and his fellow fighters are extremely distasteful and demonstrate a disrespectful attitude towards the deceased soldiers, but that they are not serious enough to constitute "outrages upon personal dignity" (see para. 3.3 below). The Public Prosecution Service's first ground for cassation complains about that holding (see Section 5 below).
With regard to what has been charged at Count 2 (briefly put, participation in an organisation that aims to commit terrorist crimes, as is punishable under Article 140a of the Criminal Code), the accused was given a prison sentence of five years and four months. The Public Prosecution Service's second ground for cassation and the accused's grounds for cassation concern the Court of Appeal's decisions on that Count (see Section 6 and Section 7 below).
3. The first charge, written demand of the Public Prosecution Service and reasons for the Court of Appeal's acquittal of count1
Charges
3.1
The accused is charged at Count 1 with the following:
"he, at one (or more) point(s) in time in or around the period from 1 March 2015 up to and including 27 April 2015, in or near Al-Ziyarah (Syria) and/or Hama (Syria), or at least somewhere (else) in Syria, either alone or jointly and in conjunction with (an)other person(s),
in the event of a non-international armed conflict within the territory of Syria, contrary to the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949, of one or more person(s) who were then not (or no longer) taking part in the hostilities directly, namely one or more civilian(s) and/or personnel of armed forces who had laid down their weapons and/or one or more person(s) who were placed hors de combat by sickness and/or wounds and/or detention, and/or any other cause,
committed outrage upon his/their personal dignity (and/or) (in particular) treated him/them in a humiliating and/or degrading manner,
because he, the accused and/or his co-perpetrator(s), while the aforementioned (deceased) person(s) were lying on the ground,
- stood and/or posed next to the aforementioned (deceased) person(s) and/or
- called the aforementioned (deceased) person(s) 'dogs' and/or 'carcasses of Al-Assad' and/or sang songs, and/or
- exhibited the aforementioned (deceased) person(s) and/or
- placed his foot on the body of the aforementioned (deceased) person(s) and/or
- kicked the body of the aforementioned (deceased) person(s) with his foot and/or
- spat on the body/bodies of the aforementioned (deceased) person(s) and/or
- had himself/herself filmed with one or more of the aforementioned (deceased) person(s) during the above action(s) and/or
- subsequently posted this video on social media, namely YouTube, and thereby (thus) distributed it and/or made it public.”
Public Prosecution Service's written demand
3.2
According to the court record of the appeal hearing of 11 October 2022, the Public Prosecution Service addressed the hearing in accordance with the written demand attached to the court record. This demand entails the following, among other things:
"5 The war crime
Article 6(1)(c) of the International Crimes Act criminalises the war crime of outrages upon personal dignity, particularly humiliating and degrading treatment. It is the transposition of Article 8(2)(c)(ii) of the Rome Statute. These articles are based on Common Article 3 of the Geneva Conventions of 1949. Common Article 3 is part of international humanitarian law, the set of rules that seeks to limit the humanitarian consequences of an armed conflict. The articles apply to armed conflicts not of an international character.
According to the Explanatory Memorandum to the International Crimes Act, the Dutch courts must study the relevant international law for the interpretation of the elements of the offence. This is provided in laws including the Rome Statute. The Elements of Crimes drafted on the basis of Article 9 of the Rome Statute assist the Court in the interpretation of the crimes. The Dutch courts must also study international case law, such as that of the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda.
As explained by this Court of Appeal in the Nashville case, the elements of the war crime "outrage upon personal dignity", or humiliating and degrading treatment, can be divided into six questions. In order to find the accused guilty of this war crime, the following questions must be answered affirmatively:
1. Did an armed conflicts not of an international character happen in Syria?
2. Was the accused aware of the factual circumstances that constitute the existence of the armed conflict?
3. Is the victim protected by international humanitarian law, and Common Article 3 in particular?
4. Was the accused aware of the facts and circumstances underlying the victim's protected status?
5. Did the accused commit outrages on the victim's personal dignity and/or humiliate and degrade the victim?
6. Are the accused's litigious actions and the aforementioned armed conflict linked?
(…)
Re 5: The accused committed outrages on the victim's personal dignity and/or humiliated and degraded the victim
Legal framework
The Elements of Crimes state:
"The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.”
The footnote to these Elements states that with regard to this crime, "persons" include dead persons.
The victim does not need to be personally aware of the existence of the humiliation or degradation or other violation. This provision is meant to protect unconscious or mentally disabled persons against deliberate humiliation.
Moreover, the relevant aspects of the victim's cultural background are taken into account. Therefore, an action that is humiliating to someone of a certain nationality, culture or religion, but may not necessarily be humiliating to others, is also part of the crime.
Outrages upon personal dignity can be committed against deceased people
Before addressing the substance of the crime, I want to review briefly how the Elements of Crimes were drafted. I do so in relation to the question of whether deceased persons can also be subject to outrages upon personal dignity. The Elements of Crimes were drafted by a preparatory committee ("PrepCom") comprising delegates of States. Underlying this was a study by the International Committee of the Red Cross (ICRC) regarding all war crimes. This study contains all relevant sources based on extensive research into and analysis of the tools of international humanitarian law and the relevant case law of international and national war crime trials.
With regard to the war crime "outrages upon personal dignity", the ICRC stated that the offence is drafted in the same way for both armed conflicts of a national and an international nature. The ICRC referred to the
M. Schmidcase as relevant case law. In this case, the accused was convicted of mutilating a dead prisoner of war and refusing an honourable burial. The ICRC also referred to the
T. Chuichicase. In this case, the accused was convicted of cutting the hair and beard of a prisoner of war and forcing him to smoke a cigarette. The prisoners of war were followers of the Sikh religion, which prohibits believers from cutting their hair or beards and from using tobacco.
M. Schmidcase as relevant case law. In this case, the accused was convicted of mutilating a dead prisoner of war and refusing an honourable burial. The ICRC also referred to the
T. Chuichicase. In this case, the accused was convicted of cutting the hair and beard of a prisoner of war and forcing him to smoke a cigarette. The prisoners of war were followers of the Sikh religion, which prohibits believers from cutting their hair or beards and from using tobacco.
In a ruling by the Bundesgerichtshof (27 July 2017, ECLI:DE:BGH:2017:270717U3STR57.17.0) referred to in the letter by the defence counsel dated 15 September 2022, the statement that the States did not agree on whether outrages upon personal dignity can also be committed against deceased persons was found speculative. In so far as this Court of Appeal, in spite of the Nashville judgment, had any doubts about this possibility, the Public Prosecution Service points out that the ICRC expressly referred to a case about a deceased prisoner of war with regard to this crime. The Public Prosecution Service argues that this demonstrates the importance of also giving protection to deceased persons.
Case law
The ICTY based its assessment of whether an outrage upon personal dignity exists, in part, on subjective criteria related to the victim's vulnerability. This includes the national, cultural or religious background of the person. Objective criteria related to the severity of the conduct are also relevant. This approach was also taken by the Court of Appeal in Nashville. With regard to the severity of the conduct, the ICTY ruled that the humiliation of the victim must be so intense that every reasonable person would be outraged by it.
Outrages upon personal dignity are often not isolated acts. The crime can be the result of a combination or accumulation of several acts which separately do not constitute an outrage upon personal dignity. The form, severity and duration of the violence and the intensity and duration of the physical or mental suffering serve as the basis for the assessment of whether crimes were committed. Where outrages upon personal dignity have been committed, these mainly concern acts, omissions or words which do not necessarily involve long-term physical harm, but are nevertheless serious crimes that must be criminalised.
In the recent case against
Ongwen, the International Criminal Court reiterated the legal framework of outrages upon personal dignity. The suffering or injury is not required to have long-term consequences.
Ongwen, the International Criminal Court reiterated the legal framework of outrages upon personal dignity. The suffering or injury is not required to have long-term consequences.
Following the ICTY case law, being forced to dance naked on a table also falls under the scope of such outrage. Such outrage also existed in the case where a victim's underwear was cut with a knife in public, so she was only wearing a blouse. The crime also includes inappropriate circumstances of confinement; being forced to commit submissive acts; being forced to relieve oneself while still clothed; or experiencing a continuous fear of being subjected to physical, mental or sexual violence.
The disrespectful treatment of bodies, the mutilation of bodies, the burial of bodies in mass graves and the digging up of bodies to cover up the crimes committed are qualified as crimes against humanity. The desecration of the remains of a body is also characterised as such. While the Public Prosecution Service is aware that crimes against humanity have a different purpose than war crimes, this demonstrates that these acts are also considered serious crimes of international concern.
Prosecution has also taken place at national level in several European countries for the war crime of outrages on the personal dignity of deceased persons. I of course particularly refer to your judgment of 26 January 2021, in which the accused posed with the deceased person and had a picture of himself and the deceased taken. The accused then posted this photo on Facebook and also sent it to someone.
The facts
The video shows several deceased persons covered in blood. Around them, people are singing and laughing, calling them dogs and al-Assad carcasses. The atmosphere emanating from the video is nothing short of disrespectful. The deceased persons are pointed at, people around them are posing and they are specifically included in the video on a regular basis. The men clearly feel superior and treat the deceased persons as inferior. The deceased persons are dehumanised and degraded.
It is important to not just select isolated actions from the video, but to look at the video as a whole. What would a reasonable person looking at the video think? It seems clear to me that they would feel outrage. The deceased persons are spat at from a short distance several times. At a certain point in time, a foot is placed on the body of one of the deceased. While no heavy kicking is involved, this is irrelevant in this case. Placing a foot on or moving a foot against the body of a deceased person is eminently humiliating and degrading, as if the bodies of the deceased persons are only worthy of being touched with the filthy sole of a shoe.
As is also clear from the demands of the Public Prosecution Service in the first instance and in the judgment, I also want to point to the cultural background of the deceased. Especially in Islamic culture, where sho0wing the sole of your shoe to someone is a sign of utter disrespect, it is not hard to guess the reaction to placing the dirty sole of a shoe on a deceased person.
These humiliating and degrading actions by the accused and others are therefore – especially when considered together – of such a nature that they constitute outrages upon personal dignity."
Court of Appeal's reasons for the acquittal
3.3
The Court of Appeal acquitted the accused of the charge under 1 by judgment of 6 December 2022, ECLI:NL:GHDHA:2022:2421 (English translation ECLI:NL:GHDHA:2022:2858). In this regard, the Court of Appeal held as follows:
“8.3 The video material
8.3.1
The YouTube video (video 1)
On 9 October 2019, Dutch police secured a video from the YouTube website and found that it had been posted on 26 April 2015 by a user named '[name YouTube user 1]'. The title of the video is ' Ahrar al-Sham - Liwa al-Adiyat - battle of the Al-Ghab plain ( Sahl al-Ghab )'. Below – in line with the case file – this video will be referred to as video 1.
The video concerns a compilation of various images edited together, on which the reporting officer watching the video sees and finds the following.
In the first second, a screen-filling logo can be seen, which can further be seen in smaller size in the top right-hand corner. This is the logo of Ahrar al-Sham with the addition 'Liwa' al-Adiyat' underneath. First, the Ahrar al-Sham 's Adiyat brigade can be seen firing at a MIG fighter jet. From minute 2:01, the images consist of shades of green and black, possibly made with the camera’s night vision setting on. Eight or more men, partly armed and in combat dress, can be seen in the picture. Some of the men are chanting and shouting slogans. There are also three or more male bodies lying on the ground. These look lifeless and are very severely battered.
Between minute 2:00 and 2:13, (a man, referred to as) man 1 says:
‘Allah is greater, and glory is for Allah. This is unfortunate in Al-Ziyarah village. These are the carcasses of Al-Assad. We asked them for peace, but they wouldn’t listen. This is the end of the shabiha. The dogs. Allah is greater, and the glory is for Allah.’
Between minute 2:17 and 2:24, man 1 says, while enthusiastic [sic] singing songs:
‘we have the glory ‘ Ziyarah ’ and have surrounded the Gargar [interpreter’s note: this is the locality of Qarqur spoken in dialect] and Frecha [interpreter’s note: this is the locality Frikeh spoken in dialect].’
Between minute 2:25 and 2:32, man 1 says:
‘Allah is greater, and glory is for Allah. Here lie the bodies of Al-Assad's dead in ' Ziyarah ' village. Allah is greater, and glory is for Allah. Here lie the shabiha.‘
Between minute 2:32 and 2:39, man 1 says:
‘This is the end of the dogs. We are the lions of our lord Muhammad.‘
Between minute 2:57 and 3:27, man 1 says:
‘In the name of God the merciful, the merciless. Allah is greater, and glory to Allah. Here lie the bodies of Al-Assad’s dead in ' Ziyarah ' village.
Allah is greater, and glory to Allah. (referring to his comrades) They are heroes. The heroes of ' Ziyarah ' [inaudible]. Here are the bodies of the shabiha. Allah is greater, and the glory to Allah.‘
Between minute 3:27 and 3:50, man 1 says:
‘In the name of God the merciful, the merciless. Allah is greater, and glory to Allah. Here are the shabiha of Al-Assad. They [read: shabiha] were arrested while returning from Al-Qatwiya village [phonetic] near the locality of Al Mashik [phonetic, non-audible] and were arrested and killed. They are 7...7 carcasses. Allah is greater, and the glory to Allah. Allah is greater and the glory to Allah. This one is one of the dogs.‘
An unfamiliar voice says: ‘Just film it... Just film it.’
Between minute 4:02 and 4:31, man 1 says, inter alia:
‘And this one is one of the dogs [his name] [name 1].’
An unfamiliar voice then asks:
‘Is he an Alawite?‘
After which someone replies:
‘Yes, three Alawites.‘
A subtitled version of video 1 was added to the file on appeal. According to the interpreter involved here, between 4:26 and 4:30, the following statement can be heard: 'The flag of Islam is being raised at the [sic] Mashik checkpoint '.
Video 1 was played at the Court of Appeal hearing.
At minute 2:46, a foot can be seen being placed on the body of an (apparently) dead man on the ground. At moment 3:08, the man, previously referred to as man 1, can be seen moving his left leg towards an (apparently) dead man in front of him on the ground and withdrawing it. What he does with his foot to the dead man is not visible as this is just out of frame.
This man 1 is armed with a machine gun and is wearing a tactical vest. When he speaks, he regularly speaks in the direction of the camera. He utters the words shown above between minute 3:27 and 3:50, while addressing the camera and pointing at a body lying on the ground. At moments 3:19 and 3:20 respectively, two persons can be seen spitting towards a body lying on the ground. In the various fragments, man 1 is always among other men, some of whom are armed and who always remain near - by all appearances - other killed persons lying on the ground.
(…)
8.3.5
Can the accused be seen in video 1?
(...)
The Court of Appeal concludes that the accused can be seen as man 1 in video 1. He is the man who mainly speaks, calls the deceased fighters, dogs and carcasses and moving his foot towards a body.
(...)
9. Considerations with regard to Count 1
Under Count 1, the accused is charged - in brief – with being guilty of committing the war crime of outrages upon personal dignity, in particular humiliating and degrading treatment. (…)
The Court of Appeal must first assess whether a non-international armed conflict exists within the meaning of CA 3. Furthermore, an assessment is needed as to whether the victims are persons enjoying protection under CA 3 and whether the accused had knowledge of this status. An assessment will then be made as to whether the accused's conduct constitutes outrages upon personal dignity of the victims. Finally, there must be sufficient connection between the established conduct and the armed conflict (nexus). Here again, it is important that the accused had knowledge of the factual circumstances that had led to the existence of the conflict.
For the interpretation of the elements of the criminalisation of war crimes, the Court of Appeal is guided by international law, such as the Statute of the ICC and the Elements of Crimes drawn up on the basis of Article 9 of the Statute of the ICC, and guiding rulings by international tribunals, such as the ICTY, in view of the international character of the offence charged.
(…)
9.2
Protected persons
Legal framework
International humanitarian law determines inter alia which persons are protected at the time of international and non-international conflicts.
CA 3 defines them as persons who do not (or no longer) participate directly in the hostilities. This refers to civilians, but also includes personnel of armed forces who have laid down their weapons and person who were placed hors de combat by sickness, wounds, detention, or any other cause. The ICTY further determined in the Boškoski and Tarčulovski case that the following must be established:
‘[T]he perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.’
The ICC's Elements of Crimes provide that the victim need not be personally aware of the conduct and deceased persons can also be victims of this crime.
By contrast, the accused needs to have been aware of the factual circumstances that form the basis of the aforementioned (protected) status.
Assessment by the Court of Appeal
Given the specific conduct included in the indictment, Count 1 relates to what can be seen in video 1. The Public Prosecution Service has argued that it is evident that, at the time the offences were committed, none of the victims - all deceased – were participating directly in the hostilities and that they were thus protected persons within the meaning of CA 3. The defence counsel has argued that deceased persons cannot be regarded as persons within the meaning of Article 6 of the WIM and as such do not enjoy protection within the meaning of CA 3. The Court of Appeal has ruled as follows.
CA 3 protects anyone who does not or no longer actively participates in hostilities related to the armed conflict. This stipulation is also part of customary international law. In practice, this means that civilians, combatants who have laid down their weapons or combatants who are hors de combat, e.g. because they have been captured or are sick or wounded, enjoy protection.
In the present case, the Court of Appeal finds that, in view of the clothing and equipment of the persons involved visible in video 1, the references to and expressions of joy with regard to the victims by those present, and the general context in which they all find themselves, it is sufficiently plausible that the deceased persons were combatants, belonging to a (different) party within the conflict. That the latter, also referred to as ‘the bodies of Al-Assad's dead’ in the video, were already hors of combat at the time of the conduct to which the indictment relates and thus no longer actively participating in hostilities is not in dispute. Who killed them is irrelevant here - indeed, the act charged under 1 took place after the victims’ deaths.
Unlike the defence counsel, however, the Court of Appeal finds that deceased persons do enjoy protection within the meaning of CA 3, despite this not being specifically mentioned as an example in CA 3. The protected interest - the dignity of the individual - belongs to all those who cannot be excluded from protection on the basis of direct participation in hostilities. Here, it is of importance not to lose sight of the raison d'être of the protection - respect for human dignity – just as the ICTY rules in Furundžija. Indeed, the aim is to protect the individual from assaults on his personal dignity regardless of whether such assault arises from an unlawful attack on the body or from humiliating and impairing a person's honour, self-respect or mental well-being. The Court of Appeal fails to see that such personal dignity can no longer exist once a person is deceased.
The deceased victims were therefore among those persons protected by CA 3 and customary humanitarian law.
9.3
Outrages upon personal dignity
Legal framework
The prohibition of outrages on personal dignity, by (in particular) degrading and humiliating treatment, as charged under 1, is also enshrined in CA 3. This prohibition has been reaffirmed in the Additional Protocols and is considered to be valid customary international law. However, neither the Geneva Conventions nor the Additional Protocols define outrages upon personal dignity.
With regard to outrages upon personal dignity, the ICTY formulated the following definition in the Kunarac case:
"The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.”
In other words, the outrage may involve an intentional act but also an omission that has caused severe humiliation or otherwise a serious outrage upon human dignity. This assessment should consider subjective criteria, such as the victim's vulnerability, but also objective criteria related to the severity of the act.
The ICC Elements of Crimes consider the relevant aspect of the victim's cultural background. As a result, conduct that, for example, is degrading to someone of a particular nationality, culture, or religion, while not necessarily so to others, also falls within the scope of the concept of outrages upon personal dignity. This is a case-by-case assessment.
As with cruel or inhuman treatment, outrages upon personal dignity may consist of a single isolated act but may also result from a combination or accumulation of different acts which, taken individually, would not qualify as cruel or inhuman treatment. The Court of Appeal adopts what was determined by the ICTY in the Aleksovski case:
"The seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed."
As already established, the humiliation must be severe, but it is not a requirement that the outrage have lasting consequences. A fleeting act of misconduct may also be serious. Nor is special intent required, as is the case with torture.
The Court of Appeal only cited those elements of outrage upon personal dignity by humiliating and degrading treatment from case law that are relevant to the assessment of what the accused has been charged with in the present case. This is not an exhaustive enumeration.
Assessment by the Court of Appeal
The defence counsel has disputed the argument that the seriousness of the acts is sufficient to constitute - especially towards deceased persons - degrading or humiliating treatment affecting personal dignity. The Public Prosecution Service has argued that the acts - certainly when considered in combination with one another - were of such a nature as to constitute outrages upon personal dignity. In this regard, the Court of Appeal has ruled as follows.
Insofar as relevant here, video 1 shows that the government soldiers killed are surrounded by fighters of Ahrar al-Sham . They shout slogans, chant and comment on their own success and the defeat of the government soldiers in the battle of Al-Ghab . The soldiers killed are reviled and insulted. For a moment, one of the fighters puts his foot on one of the bodies. The accused moves his leg towards one of the bodies, and two persons spit in the direction of the bodies.
These acts by the fighters are extremely distasteful and demonstrate a disrespectful attitude towards the deceased soldiers. This does not necessarily mean that there has been an ‘outrage upon personal dignity, in particular humiliating and degrading treatment’ within the meaning of Article 6, paragraph 6 under c of the WIM [International Crimes Act]. The bar for that is higher. The Court of Appeal will elucidate this point.
Despite the deceased enjoying protection under CA 3, they cannot be said to be suffering severely physically or mentally. Furthermore, the video shows that the bodies and their uniforms remain virtually untouched. They appear to be shown as they were found. They are indeed depicted but not (and in contrast to in an earlier case that the Court of Appeal ruled on) displayed as trophies. The Court of Appeal further has considered the fact that the actions of the fighters summarised above last only a few minutes. The foot being placed on a body, the leg being moved, and the spitting take place once and twice respectively and always within a brief moment. One has to play the video several times to notice these actions. The fighters do not pay specific attention to this. Nor does the person filming. The emphasis is on celebrating victory at the expense of the deceased soldiers. All this detracts to some extent from the gravity of the fighters' behaviour.
Finally, the Court of Appeal considers that the interests of surviving relatives may also play a role in the question of whether an outrage upon personal dignity has taken place. In the current case, the file provides no information on this aspect; no indication as to whether the soldiers were recognised, or otherwise revealing anything about their identity or possible relatives. Therefore, the Court of Appeal cannot further consider the interests of surviving relatives in this case.
The conclusion is that the acts described are disrespectful, but in this case do not constitute ‘outrages upon personal dignity’, as explained against the background of inter alia authoritative statements by the ICTY."
4.Legal framework
4.1
The charge is tailored to Article 6(1), opening words and at (c), of the International Crimes Act. It must therefore be assumed that the words "committed outrage upon his/their personal dignity (and/or) (in particular) treated him/them in a humiliating and/or degrading manner”, which are included in the charge, were used according to the meaning that these words have in that provision.
4.2
Article 6(1), opening words and at (c), of the International Crimes Act reads:
“Any person who, in the event of non-international armed conflict, commits the offence of violating Common Article 3 of the Geneva Conventions, i.e. committing one of the following offences against 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, of one of the following offences:
(...)
c. outrages upon personal dignity, in particular humiliating and degrading treatment;
(...)
(...)
c. outrages upon personal dignity, in particular humiliating and degrading treatment;
(...)
shall be punishable by life imprisonment or a temporary term of no more than thirty years or a fine of the sixth category.”
4.3
Article 6(1) of the International Crimes Act refers to common Article 3 of the Geneva Conventions. In view of Article 1(1), opening words and at (a) of the International Crimes Act this refers to Article 3 of:
- the Convention (I) concluded in Geneva on 12 August 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Netherlands Treaty Series 1951, 72);
- the Convention (II) concluded in Geneva on 12 August 1949 for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Netherlands Treaty Series 1951, 73);
- the Convention (III) concluded in Geneva on 12 August 1949 relative to the Treatment of Prisoners of War (Netherlands Treaty Series 1951, 74);
- the Convention (IV) concluded in Geneva on 12 August 1949 relative to the Protection of Civilian Persons in Time of War (Netherlands Treaty Series 1951, 75).
Article 3, opening words and at (1)(c) in each of the Geneva Conventions reads:
“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:
(...)
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment”.
4.4.1
The legislative history of the International Crimes Act (Act of 19 June 2003, containing rules regarding serious violations of international humanitarian law (International Crimes Act), Bulletin of Acts and Decrees 2003, 270) includes, among other things:
- the explanatory memorandum:
"The proposed International Crimes Act is a broad law, criminalising "the most serious crimes of concern to the entire international community" (preamble to the Rome Statute of the International Criminal Court, 17 July 1998, Netherlands Treaty Series 2000, no. 120; hereafter also referred to as the Statute of the Criminal Court). These include the crime of genocide, crimes against humanity, torture and war crimes.
(...)
Before addressing the four categories of international crimes criminalised under this act in a general sense below, the manner of defining the offences will be briefly explained. As will become clear, the Dutch offence definitions follow, usually literally, the international instruments in which the offences are classified as crimes. In some cases, this means that the offence definitions are more concise and contain terms that are more general – or rather, more vague – than what is customary in Dutch criminal law. No attempt has been made to translate the international definitions into detailed Dutch offence definitions. This would disregard the international nature of the offences that is "rooted" in treaties and unwritten law as laid down in international jurisprudence (sometimes the offence definitions even refer to underlying norms of international law, as in case of deportation (Article 1(1)(c)) and severe deprivation of physical liberty (Article 4(1)(e), see the article-by-article explanation on this). The government does not agree with the argument, which was put forward in the consultation round, that the fact that the international offence definitions are followed leads to tension with the
lex certarequirement in some respects. It notes that the requirement that it is clear to the citizen what they are and are not allowed to do must be put into perspective, as international crimes are generally the most serious crimes, rooted, as it were, in a common international legal consciousness.
lex certarequirement in some respects. It notes that the requirement that it is clear to the citizen what they are and are not allowed to do must be put into perspective, as international crimes are generally the most serious crimes, rooted, as it were, in a common international legal consciousness.
Furthermore, a "translation" into Dutch offence definitions was not chosen, as this would carry the risk that Dutch law would drift away from the internationally applied interpretation of the crimes. This is undesirable. Therefore, for the interpretation of the offence components, both objective and subjective, and for setting the limits of criminal liability, the Dutch courts should orient themselves to international law in this regard, as laid down,
inter alia, in the Statute of the International Criminal Court and the Elements of Crimes drafted on the basis of Article 9 of the Statute of the Criminal Court, which serve as an aid in the interpretation of the crimes.
inter alia, in the Statute of the International Criminal Court and the Elements of Crimes drafted on the basis of Article 9 of the Statute of the Criminal Court, which serve as an aid in the interpretation of the crimes.
(...)
Sentence
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The gross violations of the Geneva Conventions and Protocol I carry a maximum sentence of life imprisonment or determinate prison sentence not exceeding twenty years, or a fine of the fifth category. Such a sentence also applies for violations of Common Article 3 of the Geneva Conventions (see Article 6(1) of the proposal), as the ground rules contained in that article are considered to be so fundamental that, according to current legal opinion, their violation at the time of an armed conflict not of an international character can be equated to the gross violations at the time of an international armed conflict."
(Parliamentary Papers II 2001/02, 28337, no. 3, p. 1, 5 and 13.)
- the table of concordance included in that explanatory memorandum states that Article 6(1)(c) of the International Crimes Act corresponds to Article 8(2)(c)(ii) of the Rome Statute of the International Criminal Court, Netherlands Treaty Series 2000, 120 (hereinafter: Statute) and is taken from common Article 3 of the Geneva Conventions.
(Parliamentary Papers II 2001/02, 28337, no. 3, p. 15.)
- Memorandum of Reply (Senate):
"As the present legislative proposal pertains to international crimes, in the interpretation and application of the offence definitions of those crimes, the interpretation given to them by courts other than the Dutch courts may also be relevant. This not only concerns the jurisprudence of the tribunals for Yugoslavia and Rwanda, as well as the International Criminal Court, but also that of tribunals possibly to be set up in the future. Nothing further prevents the Dutch courts from also taking into account jurisprudence of other national courts. As for the Elements of Crimes, in this context they may also be a source of orientation for this Dutch courts in this context (...). It should be noted that for the International Criminal Court, the Elements of Crimes are nothing more (and nothing less) than tools in interpreting and applying the offence definitions in the Statute (Article 9, first paragraph, Statute)."
(Parliamentary Papers I, 2002/03, 28337, no. 108b, p. 1-2.)
4.4.2
The legislative history shown above shows that the legislature intended that, when interpreting the offence component 'outrages upon personal dignity, in particular humiliating and degrading treatment' referred to in Article 6(1) opening words and at (c), International Crimes Act by the Dutch courts, the interpretation of the prohibition of 'outrages upon personal dignity, in particular humiliating and degrading treatment' in international (customary) law is followed, in particular the common Article 3, opening words and at (1) (c), of the Geneva Conventions. According to the legislature, the jurisprudence of international tribunals and of national courts in other countries are relevant in matters of international (customary) law, and the Elements of Crimes drafted on the basis of Article 9 of the Statute, can also be helpful in interpreting the offence definition.
4.5.1
The aforementioned Elements of Crimes states the following as regards the interpretation of Article 8(2)(c)(ii) of the Statute – with which Article 6(1), opening words and at (c) of the International Crimes Act corresponds:
“Article 8(2)(c)(ii)
War crime of outrages upon personal dignity
Elements
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or
more persons.
2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.
3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.”
4.5.2
A footnote to the first point of the Elements of Crimes to Article 8(2)(c)(ii) of the Statute states:
“For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.”
4.6
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter: "ICTY") has ruled in the following judgements, among others, on the question of when, in line with Article 3 of the ICTY Statute, conduct can be characterised as an 'outrage upon personal dignity' within the meaning of the common Article 3, opening words and at (1)(c) of the Geneva Conventions:
- ICTY Trial Chamber 25 June 1999, IT-95-14/1-T (The Prosecutor v. Aleksovski):
“49. A reading of paragraph (1) of common Article 3 reveals that its purpose is to uphold and protect the inherent human dignity of the individual. It prescribes humane treatment without discrimination based on “race, colour, religion or faith, sex, birth, or wealth, or any other similar criteria”. Instead of defining the humane treatment which is guaranteed, the States parties chose to proscribe particularly odious forms of mistreatment that are without question incompatible with humane treatment. The Commentary to Geneva Convention IV explains that the delegations to the Diplomatic Conference of 1949 sought to adopt wording that allowed for flexibility, but, at the same time, was sufficiently precise without going into too much detail. For “the more specific and complete a list tries to be, the more restrictive it becomes”. Hence, while there are four sub-paragraphs which specify the absolutely prohibited forms of inhuman treatment from which there can be no derogation, the general guarantee of humane treatment is not elaborated, except for the guiding principle underlying the Convention, that its object is the humanitarian one of protecting the individual qua human being and, therefore, it must safeguard the entitlements which flow therefrom.
50. The International Court of Justice held, in the Nicaragua case, that common Article 3, though conventional in origin, has crystallised into customary international law and sets out the mandatory minimum rules applicable in armed conflicts of any kind, constituting as they are “elementary considerations of humanity”.
51. The general proscription in common Article 3 is against inhuman treatment. It is instructive to take account of the elements of the offence proposed by the International Committee of the Red Cross (“the ICRC”) to the Preparatory Commission for the International Criminal Court to assist the latter in its efforts to elaborate the elements of the crimes under paragraph 2 (a) of Article 8 of the Rome Statute of the International Criminal Court, being the statutory provision recognising the grave breaches regime of the Geneva Conventions. After analysing the results of its extensive research into the ‘sources of law’, the ICRC determined that the material element of inhuman treatment is satisfied when the act or omission of the perpetrator caused serious physical or mental suffering or injury upon the person or constituted a serious attack on human dignity. As for the mental element, the ICRC noted that it is satisfied when the perpetrator acted wilfully.
(...)
53. It is also instructive to recount the general definition of the term “inhuman treatment” propounded by the ECHR, which to date is the only human rights monitoring body that defined the term: “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (ECHR). The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc”. The test offered by this definition is the level of suffering endured by the victim.
54. An outrage upon personal dignity within Article 3 of the Statute is a species of inhuman treatment that is deplorable, occasioning more serious suffering than most prohibited acts falling within the genus. It is unquestionable that the prohibition of acts constituting outrages upon personal dignity safeguards an important value. Indeed, it is difficult to conceive of a more important value than that of respect for the human personality.
55. To determine the elements of the offence of outrages upon personal dignity within Article 3 of the Statute, the Trial Chamber must look at which acts constitute the actus reus (the act or omission) of the offence and what is the requisite degree of
mens rea(necessary intent). The four Geneva Conventions themselves do not expound on these questions; however, the Commentaries prove to be more helpful by providing that “outrages upon personal dignity refer to acts which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them.”
mens rea(necessary intent). The four Geneva Conventions themselves do not expound on these questions; however, the Commentaries prove to be more helpful by providing that “outrages upon personal dignity refer to acts which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them.”
56. An outrage upon personal dignity is an act which is animated by contempt for the human dignity of another person. The corollary is that the act must cause serious humiliation or degradation to the victim. It is not necessary for the act to directly harm the physical or mental well-being of the victim. It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule. The degree of suffering which the victim endures will obviously depend on his/her temperament. Sensitive individuals tend to be more prone to perceive their treatment by others to be humiliating and, in addition, they tend to suffer from the effects thereof more grievously. On the other hand, the perpetrator would be hard-pressed to cause serious distress to individuals with nonchalant dispositions because such persons are not as preoccupied with their treatment by others and, even should they find that treatment to be humiliating, they tend to be able to cope better by shrugging it off. Thus, the same act by a perpetrator may cause intense suffering to the former, but inconsequential discomfort to the latter. This difference in result is occasioned by the subjective element. In the prosecution of an accused for a criminal offence, the subjective element must be tempered by objective factors; otherwise, unfairness to the accused would result because his/her culpability would depend not on the gravity of the act but wholly on the sensitivity of the victim. Consequently, an objective component to the actus reus is apposite: the humiliation to the victim must be so intense that the reasonable person would be outraged. (...)
57. Indeed, the seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed. In other words, the determination to be made on the allegations presented by the victims or expressed by the Prosecution largely rest with the analysis of the facts of the case.”
- ICTY Trial Chamber 22 February 2001, IT-96-23-T & IT-96-23/1-T (The Prosecutor v. Kunarac et al.):
“501. Insofar as this definition provides that an outrage upon personal dignity is an act which “cause[s] serious humiliation or degradation to the victim”, the Trial Chamber agrees with it. However, the Trial Chamber would not agree with any indication from the passage above that this humiliation or degradation must cause “lasting suffering” to the victim. So long as the humiliation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be “lasting”. In the view of the Trial Chamber, it is not open to regard the fact that a victim has recovered or is overcoming the effects of such an offence as indicating of itself that the relevant acts did not constitute an outrage upon personal dignity. Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.
502. As noted by the Trial and Appeals Chambers in the Aleksovski case, the prohibition of the offence of outrages upon personal dignity is a category of the broader proscription of inhuman treatment in common Article 3. Inhuman treatment had been described in the Trial Chamber’s judgement in the Delalic proceedings as constituted by:
[...] an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.
503. This reinforces the key aspect of the definition of the actus reus of the offence of outrages upon personal dignity, as set out by the Trial Chamber in the Aleksovski case – that the relevant act or omission must cause serious suffering or humiliation. The absence of any suggestion that the suffering caused by the inhuman treatment must have a lasting quality confirms the Trial Chamber’s conclusion that there is no such requirement in relation to the offence of outrages upon personal dignity.
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507. Taking into account the above considerations, this Trial Chamber understands an outrage upon personal dignity to be any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.
(...)
514. In the view of the Trial Chamber, the offence of outrages upon personal dignity requires
(i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and
(ii) that he knew that the act or omission could have that effect.”
4.7.1
The violation of the prohibition against ‘outrages upon personal dignity, in particular humiliating and degrading treatment’ as referred to in the common Article 3, opening words and at (1)(c), Geneva Conventions has also been classified as a crime in Article 8 Statute, which is referred to in the legislative history set out at 4.4.1 and 4.4.2:
“1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, “war crimes” means:
(...)
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against 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:
(...)
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(...).”
4.7.2
On the interpretation of this criminal offence the Trial Chamber of the International Criminal Court held the following in its judgment of 26 June 2024 in the case ICC-01/12-01/18 (The Prosecutor v. Al Hassan):
“1151. The Elements of Crimes require the following elements for this crime:
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.
2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.
3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
1152. The question of whether the ‘severity’ of the humiliation, degradation or violation is ‘generally recognized’ as an outrage upon personal dignity involves a reasonable person’s objective assessment and must be assessed on a case-by-case basis. This objective component has been defined as requiring that the ‘humiliation to the victim must be so intense that the reasonable person would be outraged’. It is not necessary to prove that the suffering or injury must have long term effects.
1153. The Chamber notes that the Court’s legal framework does not provide a definition of a conduct that humiliates, degrades or otherwise violates someone’s dignity or an ‘inhumane treatment’. The jurisprudence of this Court and international judicial institutions has established that the following acts constitute outrages upon personal dignity: rape, hanging naked female prisoners from handcuffs or forcing them to maintain a certain position for a long time, young women being forced to dance naked on a table while the accused watched, a female student being undressed and forced to do gymnastics in a public courtyard, the use of detainees as human shields or making them dig trenches, and forcing detainees to, inter alia, relieve themselves in their clothing.”
5. Assessment of the first ground for cassation proposed by the Public Prosecution Service
5.1
The ground for cassation challenges the Court of Appeal's acquittal of the offence charged at 1. It complains, among other things, about the Court of Appeal's holding that the conduct established by the Court of Appeal did not constitute "outrages upon personal dignity" within the meaning of Article 6(1), opening words and at (c) of the International Crimes Act.
5.2
For the interpretation of Article 6(1) opening words and at (c) of the International Crimes Act, the Court of Appeal sought to follow the way in which international (customary) law interprets the prohibition of "outrages upon personal dignity, in particular humiliating and degrading treatment", as laid down,
inter alia, in common Article 3 of the Geneva Conventions. In doing so, the Court of Appeal considered the jurisprudence of the ICTY and the Elements of Crimes referred to at 4.5.
inter alia, in common Article 3 of the Geneva Conventions. In doing so, the Court of Appeal considered the jurisprudence of the ICTY and the Elements of Crimes referred to at 4.5.
The Court of Appeal's holdings on the interpretation of Article 6(1), opening words and at (c) of the International Crimes Act come down to the following. An outrage upon personal dignity may be constituted by statements or conduct (which may comprise acts or omissions) or a combination of them. Given, among other things, the nature and duration of those statements or conduct and the circumstances in which they took place, it must be a serious violation of personal dignity, which may consist, in particular, of humiliating or degrading treatment. In assessing the gravity of the violation of personal dignity, significance may also be attached to the cultural and/or religious context in which the statements or conduct took place. This interpretation of Article 6(1), opening words and at (c) of the International Crimes Act does not demonstrate an incorrect interpretation of the law.
In addition, the Court of Appeal took as its starting point that the offence of Article 6(1), opening words and at (c) of the International Crimes Act also applies to deceased persons. That does not demonstrate an incorrect interpretation of the law either, also given the interpretation of international (customary) law in the footnote to the Elements of Crimes cited at 4.5.2 and in the jurisprudence of national courts of other countries, as shown in the Advocate General's advisory opinion at 3.56 and 3.57.
5.3
The Court of Appeal established the following, among other things. Dutch police secured a video from YouTube titled ‘ Ahrar Al-Sham - Liwa Al-Adiyat - battle of Al-Ghab plain ( Sahl al-Ghab )'. The video footage shows that Ahrar al-Sham fighters, including the accused, are standing around bodies of deceased Syrian government army soldiers. The fighters shout slogans, chant and comment on their own success and the defeat of the government army. They also insult and curse at the deceased, calling them "dogs" and "carcasses". The Court of Appeal furthermore established that the video footage showed one of the fighters planting his foot on one of the bodies, the accused making a movement with his leg towards one of the bodies, and two persons spitting in the direction of the bodies. These actions all take place for a very brief moment. The video also shows that the bodies of the deceased and their uniforms remain virtually untouched, while it seems that the bodies are shown as they were found.
5.4
The Court of Appeal then found, based on the facts and circumstances it had established, that although the conduct of the accused and the other fighters was disrespectful, objectively speaking it was not serious enough to classify it as an 'outrage upon personal dignity' within the meaning of common Article 3, opening words, and at (1)(c) of the Geneva Conventions, and therefore it also did not constitute an 'outrages upon personal dignity' within the meaning of Article 6(1), opening words and at (c) of the International Crimes Act. The Court of Appeal provided detailed grounds for this ruling, considering the nature of the conduct and the circumstances in which it took place. In this regard, the Court of Appeal included in its ruling that the deceased were not displayed as trophies, that the emphasis was on celebrating the victory rather than humiliating the deceased, and that the bodies of the deceased and their uniforms remained virtually untouched. The holding of the Court of Appeal at 3.3 about culture and religion furthermore shows that the Court of Appeal took into account the cultural and religious background of the victims in assessing the accused's conduct.
5.5
Against the background of the legal framework shown at 4, those rulings do not demonstrate an incorrect interpretation of the law. Nor are those rulings, intertwined as they are with evaluations of a factual nature, incomprehensible. The Court of Appeal was not obliged - also in light of what was put forward by the Public Prosecution Service, as cited at 3.2 - to give further reasons (cf. on the scope of the obligation to state reasons in question: Supreme Court 11 April 2006, ECLI:NL:HR:2006:AU9130, paragraph 3.8.4 at d).
5.6
To that extent, the ground for cassation fails.
6. Assessment of the second ground for cassation proposed by the Public Prosecution Service
6.1
The ground for cassation challenges the Court of Appeal's partial acquittal of the offence charged at 2, in short, (being a co-perpetrator) of participation in a terrorist organisation. To this end, it argues that, contrary to Article 359(2), second sentence, of the Dutch Code of Criminal Procedure (hereinafter "DCCP"), the Court of Appeal did not state any particular reasons why it deviated from an expressly substantiated position put forward by the Public Prosecution Service on the evidence as regards the charged period from 11 November 2015 up to and including 1 July 2017.
6.2.1
The accused is charged at 2 with the following:
“at one (or more) point(s) in time in or around the period from 1 March 2015 up to and including 1 July 2017, in or near Al-Ziyarah (Syria) and/or Hama (Syria), or at least somewhere (else) in Syria,
either alone or jointly and in conjunction with (an)other person(s), participated in an organisation such as Ahrar Al-Sham , or in any case a jihadi combat group associated with the aforementioned organisation, or at least (an) organisation advocating the armed jihad struggle, whose intent it was to commit terrorist offences, namely
A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or
B. manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or
C. murder (to be) committed with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code) and/or
D. conspiracy and/or deliberate preparation of and/or abetment to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2) and/or
E. possession of one or more weapons and/or ammunition in categories II and/or III (within the meaning of Article 26, paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act).”
6.2.2
In respect of which the Court of Appeal deemed it proven that:
“in the period from 1 March 2015 up to and including 10 November 2015 in Syria,
participated in the organisation Ahrar al-Sham , whose intent it was to commit terrorist offences, namely
A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or
B. manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or
C. murder (to be) committed with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code) and/or
D. conspiracy and/or deliberate preparation of and/or abetment to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2) and/or
E. possession of one or more weapons and/or ammunition in categories II and/or III (within the meaning of Article 26, paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act).”
6.2.3
The Court of Appeal's decision entails the following with regard to the partial acquittal of the period charged:
“Unlike the Public Prosecution Service, the Court of Appeal does not deem it legally and convincingly proven that the accused was still part of Ahrar al-Sham in the period after 10 November 2015, so that he should be acquitted thereof.”
6.2.4
According to the court record of the appeal hearing of 11 October 2022, the Public Prosecution Service addressed the hearing in accordance with the written demand attached to the court record. This demand entails the following, among other things:
“6 Participation in a terrorist organisation
(...)
6.3
Period 10 November 2015 - July 2017
The accused was acquitted of participating in a terrorist organisation in relation to the period 10 November 2015 up to and including 1 July 2017. This due to insufficient evidence. The first question is whether Ahrar al-Sham can be considered a terrorist organisation during this period.
There has been no evidence of any moderation, which would have been expected after the signing of the so-called Riyadh Declaration of 10 December 2015. After this, the fight against Assad's regime continued as a religious battle.
In December 2016, a rift arose within Ahrar al-Sham . Sixteen local factions formed a subgroup within the organisation, called Jaysh al-Ahrar, led by the former leader of Ahrar al-Sham .
In March 2017, Ahrar-al Sham launched an offensive against the Syrian army near Damascus, in collaboration with Hay'at Tahrir al-Sham (former Jabhat al-Nusra). Over the summer, fighting erupted between HTS and Ahrar al-Sham , who are both vying for control in Idlib province.
Since 2017, HTS has had military supremacy in Idlib and, in theory, also had control of the Bab al-Hawa border post (Turkish border). The border post is regularly closed, also after the most violent battle between the rebels (HTS and Ahrar al-Sham ) themselves in July 2017.
During 2015-2017, the Ahrar al-Sham organisation was involved in crimes committed against civilians and human rights violations.
There are no indications that Ahrar al-Sham 's terrorist intent changed or ceased to exist in the years 2015-2017. Even during this time, Ahrar al-Sham continued to pursue its main goal of overthrowing the regime by military means.
6.4
Liwa al-Adiyat
Let us now address the Liwa al-Adiyat issue. This name can be seen on the logo in video 1. This is a brigade that participated in military operations in Sahl al-Grab. It was originally affiliated to the Free Syrian Army but later in 2014 it was part of or affiliated to Ahrar al-Sham . During the rebel offensive on Sahl al-Grab, Liwa al-Adiyat presented itself as part of Ahrar al-Sham by adding Liwa al-Adiyat's own caption under its logo. Since August 2015, Liwa al-Adiyat has been fighting under its own name in Hama .
With the logo of this brigade seen on the video, it is plausible that Liwa al-Adiyat fought with Ahrar al-Sham at the time and also wanted to make this clear in the video. The accused stated that Liwa al-Adiyat is a brigade operating in Hama and that the brigade supports Ahrar al-Sham .
6.5
Participation of the accused in the terrorist organisation Ahrar al-Sham
It is apparent from the videos that the Ahrar al-Sham organisation initiates these productions and that the accused is the protagonist. He is dressed in a military outfit and carries a firearm. The persons lying on the ground were said to be soldiers of Assad, Alawites, arrested and killed. Investigations have shown that the video relates to the battle of Sahl al-Grab and fighting near the village of Al-Ziyarah in Syria, between Ahrar al-Sham with some battle groups against Assad's forces. During filming, the accused made remarks about fighting in the name of Allah against Assad's army, which also constitutes propaganda for Ahrar al-Sham .
In addition to the aforementioned videos, there is the testimony of witness Saleh, who stated that the accused was part of Ahrar al-Sham , that the accused's brother was a founder, sent a picture with a hat bearing the image of Haraqat Ahrar al-Sham , that he went back to Syria to fight, his nickname was Abu Jazid and the accused was the commander of Ahrar al-Sham .
Family members of the accused were also part of the Ahrar al-Sham organisation:
[person involved 1] , brother, died in a bombing in 2014, commander;
[person involved 2] , brother, died in 2011;
[person involved 3] , nephew, died in a bombing in 2014, commander;
[person involved 4] , (possible) cousin, died in a bombing in 2014.
The three family members killed in 2014 were killed in a bombing of the Ahrar al-Sham leadership.
The accused (via a tweet from [twitter handle] ) posted a picture of perished leaders of Ahrar al-Sham including his brother [person involved 1] and [person involved 4] on 30 January 2016, with the text "our martyr leaders".
The accused stated that he worked at the Bab al Hawa border crossing in 2017 to help people cross the border and check cars for explosives. Seven months according to the accused, until Jabhat al-Nusra launched an offensive at the border crossing. The accused said they all fled. He then fled to Turkey. The accused pointed to a person in a photograph, surrounded by others dressed in military uniform, and carrying automatic firearms. He received a salary of 250 dollars per month. The accused stated that the internal civil administration was responsible for the security of institutions, relief supplies and charitable organisations. But from the outside, Ahrar al-Sham arranged for these matters. They were responsible for securing the external border of the border crossing. Ahrar al-Sham was in control of this place, according to the accused.
The accused's statement on the Bab al Hawa border crossing is consistent with expert Verhelle's report and expert Leenders' report. During that period, the accused was part of Ahrar al-Sham , which organisation had to make way for HTS. He received a monthly salary as a soldier of Ahrar al-Sham .
The accused was involved as a fighter in the terrorist organisation Ahrar al-Sham . On top of this, he made propaganda for this terrorist organisation. He fought with this terrorist group against the Assad regime.
The accused played a role in, or supported, conduct aimed at or directly related to the realisation of Ahrar al-Sham 's intentions.
The accused knew that Ahrar al-Sham was intent on committing terrorist crimes and participated in it himself.
The aforementioned conduct of the accused, according to its outward appearance, viewed in mutual connection and conjunction, can be regarded as being aimed at participating in the aforementioned organisation, having a share in the organisation and realising the aim of Ahrar al-Sham to such an extent that it cannot be concluded otherwise than that his intentions were also focussed on this.
7 Judicial finding of fact and qualification
Honourable presiding justice, Members of the Court of Appeal, I now arrive at the conclusion. On the basis of the aforementioned evidence, viewed in mutual connection and conjunction, the following can be declared lawfully and convincingly proven.
(...)
- Being a co-perpetrator to the participation in the terrorist organisation Ahrar al-Sham in the period 1 March 2015 up to and including July 2017 in or near Al-Ziyarah (Syria) and Hama (Syria), or at least elsewhere in Syria which organisation had the objective of committing terrorist crimes listed under A to E of the charge."
6.3
What the Public Prosecution Service put forward at the hearing of the Court of Appeal regarding the evidence of – briefly put – the accused's participation in a terrorist organisation in the period from 11 November 2015 up to and including 1 July 2017 in charge 2, cannot be construed in any other way than as a position that was presented to the Court of Appeal clearly, supported by arguments and provided with an unequivocal conclusion. In its decision, the Court of Appeal deviated from this expressly substantiated position by acquitting the accused from the period in which he committed the offences from 11 November 2015 up to and including 1 June 2017 for which he was charged. Contrary to Article 359(2), second sentence, of the DCCP, the Court of Appeal did not state the specific reason for this. The Court of Appeal's finding as cited at 6.2.3 is not sufficient to this end, given what the Public Prosecution Service has put forward at the hearing of the Court of Appeal.
6.4
The ground for cassation succeeds.
7. Assessment of the other grounds for cassation of the Public Prosecution Service and the ground for cassation proposed on behalf of the accused
The Supreme Court has also assessed the other complaints against the decision of the Court of Appeal. The outcome of the assessment is that these complaints cannot lead to the setting aside of that decision. The Supreme Court does not need to give reasons for arriving at this opinion. Indeed, in the assessment of these complaints, it is not necessary to answer questions that are of importance to the unity or development of the law (see Article 81(1) of the Judiciary Organisation Act.
8.Decision
The Supreme Court:
- quashes the Court of Appeal's decision, but only as regards the decisions on the offence charged at 2 and the sentence;
- remits the case to the Court of Appeal of The Hague, so that the case can be adjudicated and settled anew in that respect;
- otherwise rejects the appeals.
This judgment was rendered by the vice president M.J. Borgers as presiding justice, and justices A.L.J. van Strien, A.E.M. Röttgering, F. Posthumus and R. Kuiper, in the presence of the acting registrar S.P. Bakker, and pronounced in open court on 22 April 2025.