Uitspraak
The Court of The Hague
Three-judge criminal section
(interlocutory decision)
Public Prosecutor's Office no 09/750009-06 + 09/750007-07
The Hague, 24 July 2007
In the criminal proceedings under the above mentioned Public Prosecutor's Office no's against:
[name of the accused]
born in [place of birth] (Rwanda) on [date of birth] 1968
address: [address]
currently held in Penal Institution Haaglanden, Penitentiary Scheveningen Remand Prison Unit 2
in its session of 24 July 2007 the Court gave the following interlocutory decision.
Introduction
1. The accused is on trial because of his involvement in a number of serious offences punishable by law (which allegedly) were committed in April 1994 in Rwanda. The indictments against the accused are incorporated in two summons which will be jointly dealt with.
2. In the Public Prosecutor's Case no 09/750009-06 the accused was summoned for a pro-forma hearing on 21 November 2006. This case was again pro-forma tried on 12 February 2007 en 5 March 2007, and also at the hearing of 11 May 2007, which was continued on 16 and 17 May 2007. These summons relate to the following counts:
I the Ambulance Murders, in short, the killing of a number of women and children who were transported by ambulance;
II the complex of the Seventh-Day Adventists Mugonero, in short the killing and/or inflicting (serious) physical and/or mental injury to a large number of people who fled to this complex;
III Taking hostage/humiliating/threatening of the [name 1]-family.
3. The Accused in the Public Prosecutor's Case no 09/750007-07 was for the first time summoned for the hearing of 11 May 2007 (continued on 16 and 21 May 2007). These second summons regard the following counts:
IV Rape and attempts of a number of women;
V Kidnapping of and murder of the grandchildren of the [name 2]-family.
4. In short, all these counts are charged primarily as war-crimes (Article 8 Act on criminal law in time of war) and alternatively as torture (Articles 1 and 2 Act implementing the Torture Convention).
5. All five counts have also been charged as genocide (Article 1 Act implementing the Genocide Convention) in the second summons. The prosecution of these counts has been taken over from the Prosecutor of the International Tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law, committed on the territory of Rwanda or neighbouring countries in the period between 1 January 1994 and 31 December 1994 (hereafter called the Rwanda Tribunal).
6. During the hearings of 11, 16 and 21 May 2007, the Public Prosecutor explicitly asked the Court to take a decision at this stage in order to exercise her right to institute proceedings on this count pursuant to Article 283, subsection 6 of the [Dutch] Code of Criminal Procedure (hereinafter called CCP). Counsel for the defence agreed to this and took the position that the Public Prosecutor was barred from prosecution in this respect.
The Court decides as follows. It emphasises that this interlocutory decision only relates to the Public Prosecutor's right to prosecute the Accused with regard to count 1 of the second summon (genocide).
8. During the Court hearings, the Public Prosecutor explained that the Public Prosecutions Department, specifically the National Office of the Public Prosecution Service, by the end of June / the beginning of July 2006, has contacted the Prosecutor of the Rwanda Tribunal (hereinafter called the Prosecutor) on the possibility to investigate the criminal offences allegedly committed by the suspect in Rwanda in 1994. There was an agreement between the Public Prosecution Department and the Prosecutor that the Public Prosecution Department would institute its own investigation in (among others) in Rwanda and that the Prosecutor would be informed in case the arrest of the accused was pending. Already in July 2006, the Public Prosecution Service discussed with the Prosecutor the possibility of a transfer of criminal proceedings from the Rwanda Tribunal to the Dutch authorities.
9. During the hearing the Public Prosecutor handed in a letter to her colleague J.J.A. Lucas, addressed to the Prosecutor's Office dated 11 August 2006. This letter reported the arrest of the Accused and the Prosecutor was asked to state his wishes with respect to the suspect's prosecution. According to the Public Prosecutor in the months of July and August 2006 frequent contacts followed between the Public Prosecutor and the Prosecutor. In the discussions reference was made to UN Security Council Resolutions 1503 (2003) and 1534 (2004) to the effect that the Rwanda Tribunal must finalise its activities and that it was not possible to try the Accused itself. By the same token, the Accused's extradition to Rwanda is not possible. The Public Prosecutor pointed out to the Prosecutor that it was not possible to institute criminal proceedings against the suspect for genocide on the basis of the acts described in the paragraphs 2 and 3 because Dutch legislation does not provide for universal jurisdiction for genocide committed prior to October 2003. Furthermore, the possibilities provided for in Dutch legislation to take over the prosecution were discussed as well as the Rwanda Tribunal's possibilities to transfer the prosecution to the national authorities. The Public Prosecution Service and the Prosecutor agreed that the best solution was a so-called 'prosecutor's referral' by which the prosecution of the Accused was transferred to the Netherlands. This resulted in a letter of 3 October 2006 from the Prosecutor to the Dutch ambassador in Dar es Salaam in Tanzania requesting the forwarding of a letter of 29 September 2006 which incorporated in the appendix the 'request to accept transfer for national prosecution from the Prosecutor of the international criminal tribunal for Rwanda to the Minister of Justice of the Kingdom of the Netherlands'. On 27 November 2006 the Minister of Justice agreed to the request which refers to 'prosecution for the crimes of genocide and complicity in genocide' and empowered the Public Prosecutor of the National Office of the Prosecution Service to take over criminal proceedings against the Accused.
10. On 5 January 2007, after receipt of this authorisation, the Public Prosecution Service demanded a preliminary enquiry with respect to the counts which are now mentioned in the second summons. By a decision of 11 January 2007 the examining magistrate rejected this demand as far as the acts charged against the Accused were qualified as genocide. According to her, the Netherlands lacks the authority to prosecute and try the Accused on that basis. The Public Prosecutor filed an appeal against this decision, but withdrew this appeal later on.
Defence concerning the conflict with the fixed system of legal remedies
11. In the first place the defence brought forward that the Public Prosecutor is not allowed to prosecute the Accused with respect to genocide because the examining magistrate already decided that the Netherlands has no jurisdiction in this matter and that the Public Prosecutor has withdrawn its appeal against this decision. According to the defence the fixed system of legal remedies implies that this decision of the examining magistrate is therefore established in law.
12. In a reaction to the above mentioned the Public Prosecutor stated that she withdrew her appeal against the decision of the examining magistrate because there was to be no relevance in a preliminary enquiry by the time that a decision on the appeal (or in cassation) would be given. The Public Prosecutor denied further that she brought forward a hidden legal remedy against the decision of the examining magistrate by requesting the Court to decide on the jurisdiction in this stage of the proceedings.
13. The Court dismisses this defence. The examining magistrate decided on a demand to institute a preliminary enquiry. There is no regulation which binds the Public Prosecutor while issuing a summons to such a decision by the examining magistrate. It is the Public Prosecutor's discretion to issue a summons without a foregoing preliminary enquiry. The Court determines that the examining magistrate in her decision considered the same point of law - in casu the jurisdiction of the Dutch criminal court and with it the admissibility of the Public Prosecution Service which is now under discussion. There is no regulation on ground of which the Court, at the hearing, is bound to a decision of the examining magistrate with respect to one of questions as set out in the Articles 348 and 350 CCP.
Jurisdiction in Dutch criminal law
14. The criminal jurisdiction of a State is understood to be the jurisdiction that a state - in accordance with international law - has given to a criminal law. With a view of the interests to be protected, it concerns the right which the State granted to itself to apply the national criminal law. In the first place, the jurisdiction of a State has significance for the State itself; jurisdiction is a condition to institute a prosecution for the State. Also, the jurisdiction of a State can have significance for other States, such as in casu the criminal law of the State is applicable to criminal facts committed on the territory of another State. Thirdly, jurisdiction naturally also has significance for those who will be possibly subjected to it.
15. The Dutch criminal jurisdiction is set forth in the first place in Articles 2 up to and including 7 of the Penal Code. In short, these provisions imply that Dutch criminal law applies to:
- any person who commits any offence in the Netherlands (territoriality principle);
- a Dutch national who commits certain criminal offences while abroad (active personality principle);
- anyone on foreign soil who commits certain criminal offences leaving a victim possessing the Dutch nationality (passive personality principle);
- anyone on foreign soil who commits criminal offences against vital national interests, such as the sovereignty or the security of the Dutch State (protective principle);
- anyone on foreign soil who commits certain criminal offences (universality principle).
16. These articles of the Penal Code provide for so-called direct jurisdiction, which means the jurisdiction established by the Dutch legislature for the Dutch judicial authorities assigned with the prosecution and adjudication of criminal offences.
17. The Penal Code also provides for regulation of indirect jurisdiction (Article 4a Penal Code). Pursuant to Article 4a the Dutch Penal Code, the criminal law of the Netherlands is applicable to anyone against whom proceedings have been transferred to the Netherlands from a foreign state pursuant to a treaty conferring jurisdiction to prosecute on the Netherlands.
18. In 1994, the period during which the facts the Accused charged with allegedly took place, in addition to the (general) provisions on jurisdiction incorporated in the Penal Code, the following provisions as relevant to this case entered into force: the Act Implementing the Genocide Convention, Official Journal 1964, 243, taking effect on 24 October 1970, Official Journal 1970, 481 (hereinafter referred to as Act Implementing Genocide Convention); the Act on criminal law in time of war and some changes in the Penal Code connected, the Military Penal Code and the Implementation Act Military Penal and Disciplinary Rules, Official Journal 1952, 408, taking effect 5 Augustus 1952 and changed after this date several times, among others on 2 July 1964, Official Journal[......] 243, taking effect 24 October 1970, Official Journal1970, 481 (hereinafter referred to as Act on criminal law in time of war).
19. Together with the Act Implementing the Genocide Convention, the Convention on the Prevention and Punishment of the crime of Genocide of 9 December 1948, Official Journal 1960, 32 (hereinafter referred to as Genocide Convention) was implemented in Dutch legislation. As far is relevant to this case the Genocide Treaty set forth the following:
Article I:
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
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
20. The Act Implementing the Genocide Convention has been repealed on 1 October 2003 and replaced by the International Crimes Act(see paragraph 29 hereinafter). However, in the period mentioned in the indictment the Act Implementing the Genocide Convention was effective. In casu, the following provisions of this Act relevant:
Article 1:
The person who intentionally, with the aim to eliminate in whole or in part as such a national or ethnic group, a group belonging to the certain race, or a group having a certain religion or belief:
1. kills the members of the group;
2. inflicts serious physical or psychical harm on the members of the group;
3. imposes on the group living conditions aimed at its physical destruction in whole or in part;
4. takes measures aimed at preventing births within the group;
5. transfers children of the group to other groups by force
will be punished as guilty of genocide with life imprisonment or imprisonment of a period for a term not exceeding twenty years or a fine of the fifth category.
(...........)
Article 2:
The same punishment, as is threatened for the facts mentioned in the foregoing article, shall be imposed on the person who intentionally permits a sub-ordinate to commit such a fact.
Article 5:
1. Dutch criminal law is applicable on the Dutch national while abroad who is guilty
1. of a criminal offence as described in the Articles 1 and 2 of this Act
(............)
21. Pursuant the Genocide-treaty, only the State where the criminal office has allegedly been committed is held to institute criminal proceeding (or to set up an international tribunal). In the Act Implementing the Genocide Convention is opted for the active personality principle of as a reference point for jurisdiction - in addition to the territoriality principle pursuant to Article 2 Penal Code. - In the memorandum of reply of the bill leading towards this Act it is noted that the treaty does not create exclusive jurisdiction "therefore it may be possible that a judge in another State than where the criminal offences have been committed (......) has the jurisdiction" (Parliamentary Documents II, 1963-1964, 6612 (R262), 6613, no 7-8, page 2)
22. In the period of the facts charged, Article 3 (old) of the Act on criminal law in time of war as far as relevant in casu provides as follows:
Without prejudice to the regulations of the Penal Code and the Military Penal Code, Dutch criminal legislation is applicable:
(.......)
2. Any person who outside the Kingdom of the Netherlands in Europe is guilty of a criminal offence (.....) as described in the Articles 1 and 2 of the Act Implementing the Genocide Convention if this fact is committed with respect to a Dutch national or a Dutch legal person or by which any Dutch interest is or could be impaired;
(.......)
4. to the Dutch national, who outside the Kingdom of the Netherlands in Europe is guilty of a criminal offence as meant in Article 1.
23. The Act on criminal law in time of war provides for a provisions on the jurisdiction of genocide committed in times of war or punishable only in times of war (Article 1 opening words (old) Act on criminal law in time of war, in which civil war is also regarded as war (Article 1 subsection 3 (old) of the Act on criminal law in time of war) or if there is an armed conflict which cannot be categorised as a war and in which the Netherlands is involved, either as individual or collective self-defence or for the restoration of international order and security (Article 1, subsection (old) of the Act on criminal law in time of war). The legislature took as a point of reference for jurisdiction therefore - in addition to the territoriality principle pursuant to Art 2 Penal Pro Code - the active personality principle , the passive personality principle and the protective principle.
24. The Court concludes that the Accused is not a Dutch national, that the acts the Accused is charged with do not -as far is known - involve Dutch victims and that have been committed abroad.
25. Jurisdiction could only be based on the Act on criminal law in time of war if "any Dutch interest is or can be impaired" (Article 3, subsection 2 (old) Act on criminal law in time of war). This is an elaboration of the protective principle. In the parliamentary debate there is no further clarification on this sentence. Apparently, the legislature felt it was self-explanatory. It is undeniable that it is very much in the interest of the international community that international crimes will be tried and consequently also in the interest of the Netherlands. The Court, however, is of the opinion that the legislature did not aim at the Dutch interest; the Dutch interest must be impaired by the crime committed, not by the lack of a possibility to try it. . There is no reason to assume a Dutch interest in the sense of Article 3, subsection 2 (old) The Act on criminal law in time of war.
26. It appears from the foregoing that in the period of the facts described in the summons, there were no legal provisions applicable - nor in the Penal Code, nor in the Act Implementing the Genocide Convention, nor in the Act on criminal law in time of war, nor in any other Act or regulation - which provided for jurisdiction with respect to genocide committed by a non-Dutch national abroad, if this fact was not committed against or with regard to a Dutch national or a Dutch legal person or if any Dutch interest was not impaired or could be impaired.
27. It must be concluded that statutory provisions in effect during the period of the facts charged in the summons give no jurisdiction to prosecute and try the Accused on the grounds of genocide.
28. This opinion of the Court finds its confirmation in the memorandum with respect to the final report of the Permanent Committee of Justice [of the Dutch Lower House] on the bill "Containing provisions relating to the establishment of an 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 and of Rwanda nationals responsible for genocide and other such violations, committed on neighbouring territories between 1 January 1994 and 31 December 1994" (hereinafter referred to as Rwanda Tribunal Assistance Act). The Ministers of Foreign Affairs and (in the absence of the Minister of Justice), the Minister of the Interior write therein among others the following:
"In the first place we like to note that it is barely conceivable that the Netherlands has the appropriate jurisdiction over the facts which are referred to the Rwanda Tribunal for examination, taking into account the substantive territoriality incorporated in Article 2 Penal Code. It is correct that in case of a prosecution for genocide to fall back on the passive personality principle, but then a great number of Dutch nationals should have been subject of this kind of actions. "
(Parliamentary Documents II, 1996-1997, 24 818, no 5, page 7)
29. In the meantime, in the Act of 19 June 2003, containing provisions with respect to serious violations of international humanitarian law (International Crimes Act) Official Journal 2003, 270 (hereinafter referred to as International Crimes Act), effective on 1 October 2003 (Official Journal 2003, 340) there is a broader jurisdiction among others with respect to the criminal offence of genocide. These regulations are - insofar relevant - implying in casu as follows:
Article 2:
1. Without prejudice to the regulations of the Dutch Penal Code and the Military Penal Code, Dutch criminal legislation is applicable to:
a. Anyone who, outside the Netherlands, commits one of the criminal offences described in this Act, if the suspect is in the Netherlands;
(......)
Article 3:
The person who intentionally, with the aim to eliminate in whole or in part as such a national or ethnic group, a group belonging to the certain race, or a group having a certain religion or belief:
1. kills the members of the group;
2. inflicts serious physical or mental harm on the members of the group;
3. imposes on the group living conditions aimed at its physical destruction in whole or in part;
4. takes measures aimed at preventing births within the group;
5. transfers children of the group to other groups by force
will be punished as guilty of genocide with life imprisonment or imprisonment of a period for a term not exceeding thirty years or a fine of the sixth category
30. As of 1 October 2003 Dutch criminal law is applicable to anyone at any place in the world who is guilty of these facts, on the condition that the Accused is on Dutch territory (principle of restricted universality). The meaning of the last sentence is, as appears from legal history: [the Accused] is on Dutch territory at the time of his arrest.
(Parliamentary Documents II, 2001-2002, 28 337, no 3, page 38)
31. In the drafting of the International Crimes Act it was the express choice of the legislature to refrain from a retroactive effect in this jurisdiction. The explanatory memorandum of the bill leading to the International Crimes Act notes the following:
'Closely connected with the establishment of jurisdiction is the question of the possibility of a retroactive effect of penalisation in this bill. (.....). In the first place the government notes that in principle this question only addresses crimes against humanity (and those cases of genocide over which the Netherlands previously had no jurisdiction.
(T)hat it is very difficult, if not impossible, to determine the moment in time that the punishability should be retroactive, because it is very difficult at a particular moment in time to gauge the state of (customary) international law and that this is open for discussion. Legal certainty - ratio of the prohibition on retroactive effect - is then not served with granting retroactive effect to crimes against humanity'
Parliamentary Documents II, 2001-2002, 28337, no 3, page 24 and 25)
The foregoing means that direct jurisdiction over the crimes charged cannot be derived from the International Crimes Act.
32. Therefore, the conclusion is that Dutch legislation on the basis of direct jurisdiction presents no point of reference for prosecution and trial of an Accused with respect to genocide.
(Universal) jurisdiction on the basis of a treaty and/or a decision of an international organisation
33. Article 94 [Dutch] Constitution reads as follows:
Regulations effective within the Kingdom [of the Netherlands] shall not be applied if their application is not consistent with obligations erga omnes of treaties and of decisions of international institutions.
34. As a consequence, the Court addressed the question whether there is a treaty under which the legal statutory provision of direct jurisdiction as described supra do not apply. It appears not to be the case. As considered by the Court supra in paragraphs 19 and 21, the Genocide Convention - as far as relevant in casu - implies that the Accused should be tried by a court of the State in which territory the criminal offences are committed or by an international tribunal. The Genocide Convention therefore does not contain any obligation for the Netherlands establishing jurisdiction with respect to acts committed abroad which can be qualified as genocide. Dutch legal provisions, therefore, do not violate this Convention, neither do provisions of any other treaty to which the Netherlands is a party.
35. In 1994, there was no decision of an international organisation containing an obligation to create jurisdiction over acts, which can be qualified as genocide. Neither is there any decision of an international organisation implying an obligation to establish jurisdiction retroactively or to expand provisions retroactively with respect to acts that can be qualified as genocide.
(Universal) jurisdiction on the basis of customary international law?
36. The Court consequently dealt with the question whether international customary law in casu may serve as a basis for direct jurisdiction.
37. In this respect it is important to note the decision of the Dutch Supreme Court in the case of the December Murders of 18 September 2001 (LJN 1472, Dutch Case Law 2002, 559 annotation: JR. In this judgement, the Supreme Court refers to the extensive exchange of opinions in the House of Parliament during the constitutional revision of 1983 that confirmed that international customary law is binding for the Dutch legal order. The Supreme Court, however, also considers that the constitutional legislature did not accept the application of international customary law if this application was in conflict with the national legal regulations. In the case at hand dealt with by the Supreme Court, the above led to the consideration that unwritten customary international law could not exclude the application of the prohibition of granting retroactive effect to penalisation ex Article 16 Constitution and Article 1, sub 1, Penal Code (see grounds 4.1 up to and including 4.8). Moreover, in this judgement the Supreme Court held that a court is not free to exclude regulations on national jurisdiction from application because of conflict with unwritten customary international law (see grounds 6.1. up to and including 6.4).
38. In view of this judgement, the Court dealt with the question whether a possible expansion of regulations on jurisdiction on the basis of unwritten customary international law may render national regulations not applicable.
39. The Court is of the opinion that domestic provisions on jurisdiction by their nature must be considered as exhaustive - in the interest of legal certainty for both citizens as well as authorities charged with the prosecution and adjudication. This means that the legislature while determining cases in which the Netherlands has jurisdiction, at the same time has established the cases in which the Netherlands has no jurisdiction. The Court follows the conclusion of the then Deputy Advocate-General N. Keijzer, in preparation of the above judgement (see especially paragraphs 16, 17 and 69) in which he argues that provisions on jurisdiction and penalisation are equally governed by the principle of legality. Without criminal jurisdiction the threat of punishment indeed is without sense, according to the Deputy Advocate-General. Penalisation must not be extended without an appropriate legal stipulation. Just as without an appropriate legal stipulation jurisdiction of the Dutch criminal court must not be extended.
40. The answer to the question raised above of whether or not a possible extension of the provisions on jurisdiction on the basis of unwritten customary international law may render the national regulations not applicable is therefore answered.
41. The foregoing means that provisions on jurisdiction can only be extended by the legislature or an obligation erga omnes by treaties or decisions of international organisations containing such an obligation.
42. A fortiori, this implies that a rule of unwritten customary international law, which is in conflict with domestic provisions on jurisdiction, cannot be applied retroactively. The Court finds this opinion confirmed by the parliamentary history of the coming into effect of the International Crimes Act, of which part of it is already described in paragraph 31 above. Referring to the Supreme Court's December Murders judgement the legislature expressively has chosen not to grant retroactive effect to the expanded arrangement of jurisdiction of the International Crimes Act (with respect to genocide)
'Very recently the Supreme Court made an important decision concerning the issue of retroactive effect in criminal legislation, namely in the case against D. Bouterse concerning the December Murders in Surinam (Supreme Court 18 September 2001 (........). In this decision the Supreme Court stated that Article 16 of the Constitution and Article 1, subsection 1 of the Penal Code contain a blanket clause prohibition on the adjudication and punishment of anyone with respect to an act which was not punishable at the time that the offence was committed pursuant to Dutch law. This prohibition can only be put aside (or should be) put aside if an erga omnes obligation in a treaty as mentioned in Article 94 of the Constitution contain the obligation to make punishable the act concerned retroactively. The prohibition of retroactive effect cannot, according to the Supreme Court, be considered as non applicable because of conflict with unwritten customary international law
(.....)
If the legislature should grant retroactive effect to penalisation in the bill on hand he therefore would act in conflict with, as the Supreme Court notes, the blanket clause prohibition of Article 16 Constitution'.
(Parliamentary Documents II, 2001-2002, 28 337, no 3, page 25)
43. As a court is not free to consider national provisions on jurisdiction as non-applicable because of conflict with unwritten customary international law, the question can be left unanswered whether there is a rule of unwritten customary international law (or existed in 1994) on the basis of which the Netherlands has universal jurisdiction with respect to genocide. The national provisions on jurisdiction indeed always prevail over a regulation of diverging rules of unwritten customary international law.
44. The conclusion must be that a Dutch criminal court has no direct jurisdiction with respect to the charge of the Accused's involvement in genocide.
Indirect jurisdiction
45. As already noted supra in paragraph 17, in certain circumstances a Dutch criminal court may also have indirect (or alternative) jurisdiction pursuant to Article 4a, subsection 1, Penal Code. This provision reads as follows:
"The criminal law of the Netherlands is applicable to anyone against whom proceedings have been transferred to the Netherlands from a foreign state pursuant to a treaty conferring jurisdiction to prosecutor on the Netherlands".
The provision was incorporated in the Penal Code by the Act of 6 March 1985, Official Journal 131, effective 9 July 1985, Official Journal 285.
46. Therefore it here concerns the jurisdiction of Dutch authorities charged with the prosecution and adjudication of criminal acts which has been derived from the jurisdiction of another State on the basis of a treaty to which the Netherlands and the other State are party. Concerning the case against the Accused this means that a Dutch court has jurisdiction if:
a. the Rwanda Tribunal has direct jurisdiction to prosecute the Accused for the actions charged against him; and
b. the Rwanda Tribunal (based on a reasonable interpretation of the Act) can be equated with a "foreign State", as meant in this provision; and
c. there is a treaty from which follows the Dutch competence of instituting criminal proceedings.
Re a. does the Rwanda Tribunal has direct jurisdiction?
47. On 8 November 1994 the United Nations' Security Council (hereinafter Security Council) decided by Resolution 955 (1994) to establish the Rwanda Tribunal and in view hereof adopted the Statute of the Rwanda Tribunal which is attached to the Resolution. In doing so, the Security Council acted pursuant to Chapter VII of the Charter of the United Nations (effective 25 April 1951, Official Journal 1951, 144 and such as changed afterwards, hereinafter: Charter) in the interest of the restoration international peace and order just as in the case of instituting the International Tribunal for the prosecution of individuals responsible for serious violations of international humanitarian law in the territory of then Yugoslavia since 1991 (hereinafter Yugoslavia Tribunal). In short, the Rwanda Tribunal is charged with the prosecution and adjudication of individuals responsible for genocide and other serious violations of international humanitarian law committed in Rwanda ( and neighbouring counties) during the year of 1994. The Tribunal has no exclusive jurisdiction with respect to these criminal offences, but it has the primacy to prosecute and adjudicate the aforementioned criminal offences (Article 8, subsection 1, Statute).
48. The acts mentioned in the Rwanda Tribunal Prosecutor's request to take over the prosecution concern 'genocide' and 'complicity to commit genocide' committed by a natural person in Rwanda in the period between 1 January 1994 and 31 December 1994. The Court finds that on the basis of Articles 1, 2, 5, 7 and 8 of the Statute (the above mentioned Appendix and such as changed afterwards) the Rwanda Tribunal has direct jurisdiction over these facts. The defence did not dispute this aspect of jurisdiction.
Re b. Can the Rwanda Tribunal be equated with a 'foreign State'?
49. It goes without saying that the Rwanda Tribunal is not a state. On the basis of what is written in Article 29 Charter, the Tribunal is to be considered as a subsidiary organ of the Security Council, which is a United Nations' main organ. The Tribunal therefore is an international institution with separate legal personality. For the rest, the United Nations - contrary to what was stated by the Public Prosecutor - cannot be considered as a collective of foreign States, because the Netherlands is also a party.
50. There is no statutory provision that, for the application of Article 4a Penal Code, equates the Rwanda Tribunal with a foreign state or which declares this provision equably applicable. Parliamentary procedure of the Bill resulting in this provision of the Penal Code neither provides a point of reference for such an equation, This is understandable because at the time of the implementation of this provision the Rwanda Tribunal and Yugoslavia Tribunal were not yet been established.
51. During the entering into force of the Act of 21 April 1994 containing provisions concerning the institution of 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, Official Journal308, effective 4 May 1994 (hereinafter: Yugoslavia Tribunal Assistance Act) the legislature realised that the existing regulations about co-operation between States then in force, were not adapted to co-operation with international tribunals and that, therefore, this legislation should be amended. In the explanatory memorandum with the bill resulting to this Act, it is noted, among others:
'In addition to this, the Statute of the Tribunal obliges States to co-operate with the Tribunal on judicial and police matters in the area of (......) the gathering of evidence (....) and the handing over of suspects to the Tribunal (Article 29 Statute). (......) Special legislation is required in order to fully meet these obligations. For example, the existing statutory provisions concerning international co-operation in criminal matters are tailored to co-operation between States and not to co-operation with an international tribunal. This concerns both the transfer as well as the so-called limited judicial assistance, and the execution of sentences pronounced by non-Dutch courts. The bill at hand aims at supplementing the existing legislation on these points.'
(Parliamentary Documents II 1993-1994, 23 542, no 3, page 2)
52. With regard to the handing over to the Rwanda Tribunal, in the explanatory memorandum with the bill which led to the Act containing provisions relating to the establishment of the International Tribunal for Rwanda (hereinafter: Rwanda Tribunal Assistance Act) it was noted that it was necessary, with a view to this variant of international legal assistance, to introduce new regulations:
'In this respect it goes without saying that the option of international legal assistance as provided for in Article 2, subsection 1, of the bill at hand, different from the classic extradition, provides for the surrendering of a person claimed by a international body , instituted on the basis of a Resolution of the Security Council and not, such as usual, a sovereign State. This justifies its own regulation, which is provided for in this bill.
(Parliamentary Documents II, 1995-1996, 24 818, no 3, page 2)
53. An example of supplementary regulation, as meant above, is the provision of Article 9, subsection 1, Yugoslavia Tribunal Assistance Act which also applies to the Rwanda Tribunal as pursuant to Article 2, subsection 2, Rwanda Tribunal Assistance Act. Article 9, subsection 1, Yugoslavia Tribunal Assistance Act reads as follows:
Requests by the Tribunal concerning any form of legal assistance, addressed to any organ of the judiciary or the police in the Netherlands, whether or not addressed by name, must be complied with as far as possible.
54. From the quotations in paragraphs 51, 52 and 53 follows - as is also brought forward by the Public Prosecution Service - that already in 1993 the legislature in principle did not foresee any problem in providing (compulsory) international legal co-operation to international tribunals instead of providing it to States only. On the contrary, as the Public Prosecutor chose to characterise it during the hearing: the readiness to co-operate in criminal matters with both the Tribunals really splashed from the parliamentary documents.
55. The two Assistance Acts contain provisions concerning the handing over, the so-called limited legal assistance and the execution in the Netherlands of the Tribunal's sentences. However, these two Acts do not contain any specific regulation on the transfer of criminal prosecution from these international tribunals by the Netherlands. Its absence can be explained by the circumstance that at the outset emphasis was put on the adjudication of the Accused by the Rwanda Tribunal and the Yugoslavia Tribunal themselves. This appears from the primacy of jurisdiction by the Tribunals as laid down in Article 8 of the Statute of the Rwanda Tribunal and Article 9 of the Statute of the Yugoslavia Tribunal respectively.
56. The primary of jurisdiction by the Rwanda Tribunal now carreies less weight as a consequence of Resolutions 1503 (2003) and 1534 (2004). In these Resolutions the Rwanda Tribunal (among others) is instructed to complete its activities in 2010 at the utmost and to hand over certain categories of cases to States which have the jurisdiction and are prepared to bring this criminal cases to court. As a result of these Resolutions, the Prosecutor and the President of the Rwanda Tribunal together drafted a so-called 'Completion Strategy', in which they indicated the way in which the tribunal can implement the instruction to complete its activities. The Resolutions and the Completion Strategy did not lead, however, to amend of legislation in the Netherlands.
57. The Court notes that the Council of State [in the Netherlands] in its opinion with the bill of adaptation of the Penal Code, the Code on Criminal Procedure and a number of other Acts to the Implementation Act International Criminal Court (Parliamentary Documents II, 2001-2002, 28 099A), raised the question of whether Article 4a, subsection 1, Penal Code should be supplemented by the concept of 'an international court'. This bill provides for an adaptation of Article 5 Penal Code in the view of the obligation for the Netherlands laid down in the Statute of the International Criminal Court to extend the effect of criminal legislation to criminal offences against the International Criminal Court's administration of justice (Article 70, subsection 4 Statute). In its advice the Council of State proposed the extension of jurisdiction by way of Article 4a Penal Code and, by doing so, establishing indirect jurisdiction for the cases in which the International Criminal Court does not want to adjudicate the crimes itself, but prefers to leave the Dutch authorities with this task. Apparently, the Council of State took in account the fact that Article 4a concerns the take over of criminal proceedings from States and not from international tribunals. The legislature, however, chose for the establishment of direct jurisdiction with respect to the nature of the criminal acts mentioned above, as a consequence of which, in the subject of supplementation of Article 4a Penal Code in the sense as suggested by the Council of State, did not surface in the process of drafting. However, there are no indications suggesting serious opposition against such a supplement.
58. In this connection the Court also notes the view put forward by the Dutch government with regard to the explanation of the concept of a foreign State in the proceedings of the Rwanda Tribunal concerning the transfer of the Accused Michael [B.] to the Netherlands (Case no ICTR-2005-86-11bis). The Dutch government herein put forward its opinion that the interpretation of the concept of a "foreign State" incorporated in Article 4a Penal Code can also be interpreted as Rwanda Tribunal. In paragraph 19 of the 'Decision on the Prosecutor's Request for Referral of the Indictment to the Kingdom of the Netherlands', dated 13 April 2007 the Rwanda Tribunal's Trial Chamber quoted the view of the Dutch government herein as follows:
The Netherlands acknowledges that the issue of accepting transfer of criminal cases from international tribunals is a recent phenomenon and is therefore unsettled in its law.
Nonetheless, it emphasises the importance placed on co-operation with the ICTR and ICTY under Dutch law, and argues that "an interpretation which would exclude the ICTR from the definition of foreign state would run contrary to past and current views on the importance of co-operation with the ICTR". As support for its position, it points to Article 2, paragraph 2 of the ICTR Implementation Law which incorporates by reference Articles 3 to 18 of the ICTY Implementation Law. (...) The Netherlands submits that it "believes it important to help to extend international case law on grave breaches of the most fundamental norms of international humanitarian law, such as genocide, crimes against humanity and war crimes".
59. The foregoing brings the Court to the following. Granting of jurisdiction to international tribunals is a recent development of law in which - except for the period directly following World War II - the exclusive right to adjudicate these crimes by States has given way to concurrent jurisdiction has given way to concurrent jurisdiction, where the primacy on prosecution, dependent of the characteristics of the international tribunals, lies within either the state or the international tribunal. The Dutch authorities co-operate with these international tribunals and provide for various forms of co-operation in criminal matters. At the beginning the Rwanda Tribunal led emphasis on the adjudication of cases by the Tribunal itself, this is not longer the case however as a consequence of the decision taken by the Security Council to complete the Rwanda Tribunal's activities within a relative short period of time. The UN Member-States are now called upon to take over the trial of the Accused from the Tribunal. The fact that Article 4a Penal Code only mentions foreign States from which prosecution can be taken over does not prevent, according to the Court, that the Netherlands agrees to such requests from the Tribunal. For several years the Netherlands has been co-operating with the Tribunals as if they were foreign States. A reasonable explanation of the law brings with it that the Rwanda Tribunal for the application of the issue stated in Article 4a Penal Code can be equated with a 'foreign State'. This follows logically from the legislature's continuous line and does not require a further political choice of legal schemes.
60. It follows from the foregoing that the Court cannot follow defence counsel in his plea that a 'foreign State' should be interpreted restrictively. The Counsel refers among others to Article 552h, subsection 1 CCP and the judgement of the Supreme Court 28 March 2000, Dutch Case Law 2000, 483 in which the Supreme Court referred to the above mentioned provisions. The defence fails to appreciate in this that the Netherlands has no relation of mutual assistance in criminal matters with the European Commission, as was the case in the above mentioned judgement, but has this relation with both of the tribunals. Where the defence relies in his plea on this provision and the judgement mentioned, his plea cannot be upheld.
Re c. Is there a treaty which gives the Netherlands jurisdiction to prosecute?
61. Article 4a Penal Code was implemented by the 'Act to changes in the Penal Code and the Code of Criminal Procedures with a view to transfer of criminal prosecution by and to the Netherlands and implementation of the European and Benelux-treaties concerned, changes in the Extradition Act and the implementation of the European Convention on the Suppression of Terrorism' (Bulletin of Acts and Decrees 1985, 131). The explanatory memorandum gives the following information about the contents and the aim of this Act:
'The bill under discussion contains a general provision concerning the procedure to be followed when the Netherlands requests from a foreign State to institute criminal proceedings against an individual who is Accused of a criminal offence in the Netherlands as well as the consequences resulting from such a request. The bill also concerns the regulations on processing the requests to institute criminal prosecution from a foreign State, addressed to the Netherlands.
Within the framework of both the Council of Europe as well as the Benelux, there are treaties of a general nature with respect to the co-operation in criminal matters. We mention the European Convention on the Transfer of Proceedings in Criminal Matters of 15 September 1972, Bulletin of Treaties 1973, no 84 and the Treaty between the Kingdom of the Netherlands, the Kingdom of Belgium and the Grand Duchy of Luxembourg on the transfer of proceedings in criminal matters of 11 May 1974, Bulletin of Treaties 1974, no 184. The bill envisages making possible the application of these treaties by the Netherlands. It is, however, not limited to these treaties. (..........)
This bill also concerns a third treaty, the European Convention on Suppression of Terrorism, concluded in Strasbourg on 27 January 1977(Bulletin of Treaties 1977, no 63). The reason why its implementation is contained in this bill can be found in Articles 6 and 7 of the treaty. These provisions make it necessary to lay down in the Penal Code a basis of jurisdiction for the prosecution of the facts mentioned in Article 1 in cases where a Dutch court does not already have direct jurisdiction pursuant to Articles 2 up to and including 5 of this Code. Generally speaking, the same goes for the European Convention on the transfer of proceedings in criminal matters (Article 2) and for the similar Benelux-treaty (Article 17)'
(Parliamentary Documents II, 1979-1980, 15 972, no 1 - 3, page 7 - 8)
62. In the paragraph quoted from the legal history, it becomes clear that the treaties, such as for example European Convention on the Transfer of Proceedings in Criminal Matters (hereinafter Convention on Transfer of Proceedings), can be the basis for a transfer of prosecution in those cases where a Dutch court has no direct jurisdiction over the criminal acts mentioned in the request of transferral. In the paragraph quoted above from the explanatory memorandum Article 2 of Transfer of Proceedings is mentioned. This provisions reads as follow:
1. For the purposes of applying this Convention, any Contracting State shall have competence to prosecute under its own criminal law any offence to which the law of another Contracting State is applicable.
2. The competence conferred on a Contracting State exclusively by virtue of paragraph 1 of this Article may be exercised only pursuant to a request for proceedings presented by another Contracting State.
This provision laid down the -mutual- agreement concluded between the parties concerned that there is a right to prosecute -implying jurisdiction- if one State requests another State the transfer of prosecution. The Benelux Convention contains a comparable provision.
63. Moreover, the Convention on Transfer of Proceedings contains extensive and detailed provisions allowing transfer of cases, the manner in which the hand over/take over will take place, the consequences of a request to take over in the requesting State and the consequences of such a request in the requested State, the provisional measures to be taken in the requested State, the concurrence of criminal prosecution and provisions with respect to the principle of ne bis in idem. Similar provisions can be found in the Benelux-treaty.
64. In the explanatory memorandum with [the bill leading to] the implementation of Article 4a Penal Code, the legislature emphasised in various instances that the extension of jurisdiction of the Dutch court must be stipulated in the treaty.
'Addition to the regulations of Dutch criminal law concerning the penalisation and prosecution cannot be found in the provisions proposed. A treaty is the right place for arrangement of these subjects regarding international transfer of prosecution. This is also true for the extension of jurisdiction of a Dutch criminal court for which a treaty is the basis, not the new Article 4a Penal Code that is to be incorporated '.
(Parliamentary Documents II, 1979 - 1980, 15 972, no's 1 -3, page 8)
'The regulations of Title II of the first Book of the Penal Code concerning the scope of criminal law have a double function. They determine the jurisdiction and the competence of the Dutch court in criminal matters and at the same time they state that these facts should be considered in the light of Dutch legislation. They assume the existence of a right to prosecute, which indeed is the condition for jurisdiction (see Noyon-Langemeijer-Remmelink, note 1a with Article 2)
The right to prosecute can accrue to a State because of a treaty with respect to matters that do not originate from national jurisdiction because of an Act. Both he European and the Benelux Convention on the transfer of prosecution contain regulations by which the right to prosecute in certain cases is granted to the contracting countries. This lays down the jurisdiction of the national court. In addition to this, both treaties state that in the transfer of prosecution resulting from the treaty, legislation of the requested State is equally applicable.
In order - also with a view to possible treaties in future - to eliminate all doubt on jurisdiction and the regulations applicable in cases where prosecution is transferred to the Netherlands on the basis of a treaty without Dutch criminal legislation already applicable on the basis of one of the Articles 2 -7 of the Penal Code, Article 4a is proposed. It seems useful that the Code itself reminds that a Dutch Court's competence may originate from a treaty.'
(Parliamentary Documents II, 1979-1980, 15 972, no's 1-3, page 12)
65. Consequently, the Court expresses the opinion that it was the legislature's clear intention that the power to prosecute and adjudicate must follow from a treaty providing explicit arrangements on the transfer of prosecution and - in any case-that there is an arrangement with regard to the cases where a transfer is possible. The Court dismisses the Public Prosecutor's view to the contrary on this subject.
66. The Public Prosecutor - in short - brought forward that the authority incorporated in a treaty for the transfer as stipulated in Article 4a Penal Code can be found in:
(I) The United Nations' Charter in conjunction with the Statute of the Rwanda Tribunal; and
(II) The Genocide Convention.
(I) Can authority be found in the Charter and the Statute ?
67. In the first place, it is the Court's opinion in the Charter that there is no stipulation what-so-ever obliging the Netherlands to co-operate with the Rwanda Tribunal, let alone a stipulation from which it follows that the Netherlands has competence to prosecute if the Rwanda Tribunal transfers a case to the Netherlands. Therefore, the Charter as such cannot be considered to be a treaty on the basis of which indirect jurisdiction in the case at hand is granted to the Netherlands.
68. The Public Prosecutor stated - in short - that the Charter of the United Nations, especially Chapter VII, in conjunction with the Statute of the Rwanda Tribunal, embody the authority demanded by Article 4a Penal Code. She pointed especially to Article 28 of the Statute of the Rwanda Tribunal. Indeed, according to the Public Prosecutor, no obligation to take over prosecution originates from this provision, but a power to transfer.
69. The Public Prosecutor also noted the parliamentary discussion of the Implementation Act Yugoslavia Tribunal, especially what is said in the explanatory memorandum about the handing over to this Tribunal. She brought forward that, as far as the Constitution is concerned, a handing over is only allowed on the basis of a treaty and that the legislature considers Chapter VII of the Charter as the authority to hand over to this Tribunal. As Article 2, subsection 2, Implementation Act Rwanda Tribunal declare equally applicable the Articles 3 up to and including 18 Implementation Act Yugoslavia Tribunal, this also has significance for the Rwanda Tribunal. According to the Public Prosecutor, Chapter VII of the Charter could also be the authority for take over prosecution by the Netherlands of both Tribunals, because the handing over and taking over concerns forms of primary legal assistance.
70. The Public Prosecutor also noted the judgements of this Court of 16 October 2001 (Dutch Case Law 2002, 20) and 14 February 2002. She attached the conclusion to these judgements, that co-operation with the request of the Rwanda Tribunal to the Dutch authorities to take over the prosecution of an Accused is a legal obligation for the Netherlands, which, following the provisions contained in Article 25 and 103 of the Charter, takes precedence over other national and international obligations and regulations.
71. In the first place, the Court notes that unlike the International Criminal Court (set up by the Statute of Rome concerning the International Criminal Court dated 17 July 1998, Bulletin of Treaties 2000, 120 and effective for the Netherlands on 1July 2002), both Tribunals are not set up by multilateral treaties but by Resolutions of the Security Council, attached as Appendix the Statute of the Tribunal concerned (see in paragraph 47 above). The Member-States of the United Nations, on the basis of Article 25 Charter, must accept and execute the decisions of the Security Council based on the Charter and, therefore, are bound to these Resolutions adopted by the Security Council. The Security Council in these Resolutions stated that all Member States, as provided for in both Statutes, must co-operate with both Tribunals and their bodies and adapt their national legislation to this effect. The various forms of legal assistance which are in the competence of Member States or to which they are obliged can be read in the Statute.
72. On these grounds the Court concludes that the Charter in connection with the Statute [of the Rwanda Tribunal] can be considered as a treaty under which international legal assistance can be provided.
73. However, the Court continues - as the Public Prosecutor has done - that there is no explicit arrangement in the Statute creating an obligation or a power for the Netherlands to take over -on the request of the Rwanda Tribunal- criminal proceedings of the Tribunal.
74. In support of her arguments, the Public Prosecutor brought forward, such as mentioned above, Article 28 of the Statute. This Article reads as follows:
Co-operation and Judicial Assistance
1. States shall co-operate 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.
75. According to the Court, this article [of the Statute of the Rwanda Tribunal] provides for a general obligation to co-operate ("shall co-operate") by the Member States with the Rwanda Tribunal (subsection 1) and a specific obligation to co-operate ("shall comply") in a number of areas described in further detail (sub section 2) in order to allow investigation and adjudication by the Rwanda Tribunal. The Court as well as the Public Prosecutor concludes that this article does not contain an obligation to transfer criminal proceedings. The Court, contrary to the Public Prosecutor's view, does not understand from this article that the Member States have the competence to take over criminal proceedings of the Rwanda Tribunal. The article's object and choice of words are contrary to this interpretation. As considered above, the Rwanda Tribunal has the primacy to adjudicate international criminal offences committed in the period from 1 January 1994 up to and including 31 December 1994 in Rwanda (and neighbouring countries). The Resolution by which the Tribunal was established, obliges the Member States, where possible, to assist the Tribunal in the execution of its charge. Article 28 of the Statute of the Rwanda Tribunal is an elaboration of this. This article concerns the legal assistance rendered by States to the Rwanda Tribunal with a view to adjudication by the Rwanda Tribunal, not with a view to the competence of the Member State to take over trial from the Rwanda Tribunal. The Court dismisses the plea of the Public Prosecutor concerning this article.
76. The Court neither follows the Public Prosecutor in her plea on the basis of the explanatory memorandum attached to the bill that led to the Yugoslavia Tribunal Implementation Act concerning the authority. The explanatory memorandum on this subject reads as follows:
'Article 2 offers is the legal basis to hand over individuals to the Tribunal. It is assumed that it here concerns a form of extradition in the sense of Article 2, subsection 3 of the Constitution, which demands authority on the basis of a treaty and further regulations by law.
With neglect of the question whether as a consequence of Resolution 827, which obliges States to forms of co-operation with the Tribunals as set out in the Statute, the Constitutional stipulations can be put aside, it is evident that this obligation is based on Chapter VII of the Charter of the United Nations and that therein can be found the authority as required by the Constitution.'
(Parliamentary Documents II, 1993 - 1994, 23 542, no 3, page 3)
77. The Court determines that the handing over to the Tribunals is explicitly arranged as a compulsory form of co-operation between the Tribunals and the Member States. Therefore it is understandable that the legislature determined that Chapter VII of the Charter - as read in conjunction with (these stipulations of) the Statutes, as is understood by the Court)- may serve as the authority required. As mentioned above, on the transfer of criminal prosecution, however, there is absolutely no arrangement in the Statute of both Tribunals. The Public Prosecutor's plea on what the legislature considered with respect to the authority concerning handing over, therefore, cannot support the argument defended by her that the Charter and the Statute of the Rwanda Tribunal offer a legal basis for the take over of prosecution, which is not a compulsory form of co-operation.
78. Even more so, from the parliamentary history of the Implementation Act Yugoslavia Tribunal, it can be deduced that the legislature does not consider the Charter and the Statute as a legal basis for non-compulsory co-operation between the Tribunals and the Netherlands in cases where Dutch law requires a treaty. In Article 26 of the Statute of the Rwanda Tribunal and Article 27 of the Statute of the Yugoslavia Tribunal there are regulations regarding the execution by the Member States of the sentences pronounced by the Tribunals, which is a not-compulsory form of co-operation between the Tribunals and the Member States. Execution in the Netherlands of foreign criminal judgements is regulated in the Act on the transfer of enforcement of criminal judgements of 10 September 1986, Official Journal 1986, 464, effective in phases (hereinafter Act on the transfer of enforcement of judgements). Article 2 of this Act reads as follows:
Enforcement in the Netherlands of foreign judgements shall only take place pursuant to a treaty.
Therefore the legislature here stated as a condition that enforcement can only take place pursuant to a treaty as is the case in the transfer of prosecution (Article 4a Penal Code). The legislature realised this in the conclusion of the Implementation Act of the Yugoslavia Tribunal. This act contains an arrangement with respect to the enforcement by the Netherlands of the sentences by this tribunal (Articles 11 up to and including 14). Under the stipulations of the Act of enforcement of judgements, which are declared to be equally applicable, does not belong the provision contained in Article 2 quoted above. In other words, the authority on the basis of a treaty is explicitly declared non-applicable by the legislature. Enforcement of foreign sentences by the Netherlands therefore is only possible pursuant to a treaty or a stipulation in a special Act, such as the Implement Act Yugoslavia Tribunal. The same goes for the take over of prosecution by the Netherlands. Indeed, the transfer of prosecution and the execution of foreign sentences are not compulsory methods of co-operation and concerning both methods of co-operation, Dutch legislation sets as a condition that there must be a treaty governing this co-operation.
79. With reference to the fore-going, the Court further is of the opinion that the Public Prosecutor's plea concerning the judgements by this Court, dated 16 October 2001 and 14 February 2002, will not succeed. Both judgements indeed concern the handing over of an Accused to the Rwanda Tribunal. These sentences - in short - stipulate the following:
* the establishment of the Rwanda Tribunal (and its Statute) is directly based on Chapter VII of the Charter;
* pursuant to Article 25 of the Charter the Member States are obliged to co-operate with the Rwanda Tribunal, given the fact that the Rwanda Tribunal is based on a decision by the Security Council.
* the obligations of the Member States deriving from the Charter take, pursuant to Article 103 of the Charter - in the case of conflict - precedence over the obligations of these Member States based on other international agreements.;
* Article 28 of the Statute of the Rwanda Tribunal obliges the Member States without preconditions to grant requests to or to obey orders from the Rwanda Tribunal for arrest and hand over.
The foregoing means that the Dutch authorities are obliged to grant a request of the Rwanda Tribunal for hand over on the basis of the Statute of the Rwanda Tribunal and Article 25 and 103 of the Charter.
It is without ground that the legal obligation of the Netherlands as affirmed in the decisions - to hand over an Accused to the Rwanda Tribunal might also be a legal ground for competence by the Netherlands to transfer criminal proceedings from the Rwanda Tribunal, now that the Statute fails to provide for this transfer/take over.
80. From the foregoing the Court concludes that the Charter, viewed together and in relation to (Article 28 of) the Statute of the Rwanda Tribunal cannot be considered as a treaty from which it follows that the Netherlands has a legal basis to a take over criminal proceedings.
81. The Court finally addressed the question of whether - also with a view to the above mentioned decision of the examining judge dated 11 January 2007 (see above under 10) -the Charter in conjunction with the Statute and Security Council Resolutions 1503 (2003) and 1534 (2004) offers the legally required authority for take over of prosecution.
82. The examining magistrate decided, as cited above (see paragraph 10) that the Netherlands has no jurisdiction to prosecute and try an Accused with respect to genocide, because this Accused is not included in the Completion Strategy of the Rwanda Tribunal. The examining magistrate did decide that the Charter in conjunction with the Statute and Resolution 1503 (2003) could be considered a legal authority. In this, the Court does not follow her. Resolutions 1503 (2003) and 1534 (2004) instruct the Rwanda Tribunal to complete its activities at the utmost in 2010 and, therefore, where it concerns Accused of 'intermediate- and lower-rank', to hand these accused over to the States which are competent to try these cases. As a consequence of these Resolutions the President of the Rwanda Tribunal and the Prosecutor set up a Completion Strategy. The Resolutions concerned request the Member States to take over from the Rwanda Tribunal criminal proceedings, but there is no obligation. Such an obligation can also not be derived from the Completion Strategy. The Completion Strategy is a mere report to the Security Council on the progress of the Rwanda Tribunal concerning the methods and the speed in which the Tribunal is working to the completion of its activities in 2010. The Resolutions concerned do not contain explicit agreements with respect to the transfer of criminal prosecution and no arrangements with respect to the cases where a take over is possible. Also the Resolutions - read in conjunction with the Charter and the Statute of the Rwanda Tribunal - , therefore, do not offer the authority as required by Article 4a Penal Code (see above in paragraph 65).
II Is there authority in the Genocide Convention?
83. Further, the Public Prosecutor brought forward that the Genocide Convention, especially Article VI and I, juncto the decision of the International Court of Justice (hereinafter ICJ) in the case of 'Application of the Convention on the Prevention and Punishment of the Crime of Genocide' (Bosnia and Herzegovina v. Yugoslavia) of July 11, paragraph 31 can be the basis for a transfer of prosecution. The Public Prosecutor especially noted the ground 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"
The Public Prosecutor also noted the above mentioned view of the Dutch government in the case of 'Prosecutor v. M. [B] (see above in paragraph 58) from which it seems to appear that the Dutch government shares the view of the Public Prosecutor.
84. The Court is of the opinion that the paragraph quoted by the Public Prosecutor from the judgement of ICJ should absolutely be read in connection with the opinion of the ICJ of 28 May 1951 in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (I.C.J. Reports 1951) preceding the quotation following hereinafter and in context of the defence of the (Former) Yugoslavia.
85. The ICJ in the case mentioned above is of the opinion that:
'30. To found its jurisdiction, the Court must, however, still ensure that the dispute in question does indeed fall within the provisions of Article IX of the Genocide Convention. Yugoslavia disputes this. It contests the existence in this case of an "international dispute" within the meaning of the Convention, basing itself on two propositions:
first,
- that the conflict occurring in certain parts of the Applicant's territory was of a domestic nature,
- Yugoslavia was not party to it and
- did not exercise jurisdiction over that territory at the time in question (...)
31. (...) 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 11th 1946).
The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognised by civilised 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.'
86. In this decision the ICJ stated that the prevention and punishment of genocide is a shared responsibility of all States which (of course) does not stop at the frontiers of each State. This concept is the basis of the Genocide Convention, but it is also - apart from any conventional law conventions - an obligation that is equally applicable. The Court understands the ICJ as follows: apart from the question whether somebody may be tried in a certain State for the criminal offence of genocide, States do have the responsibility in every way possible to safeguard civilisation against the crime of genocide. This obligation contains prevention of this crime as well as punishment.
87. The paragraph quoted by the Public Prosecutor has no connection with questions regarding the jurisdiction, directly of indirectly. As there are in the Genocide Convention no relevant arrangements for a take over, the Court is of the opinion that the Genocide Convention is no treaty from which the power of criminal prosecution follows. Regarding this question, the Court distances itself from the opinion of the Dutch government in the case of Prosecutor v. M. [B.] (see par. 23 of the 'decision' of the Trial Chamber) which, as mentioned in paragraph 83 above, is identical with the Public Prosecutor's argument in this case.
88. From the foregoing the Court concludes that there is no treaty from which follows the power of the Netherlands to take over the criminal proceedings. This means that a Dutch criminal court has no indirect jurisdiction based on Article 4a Penal Code.
Conclusion
89. Consequently, the Court bars the Public Prosecutor from prosecution with respect to count 1 of the summons on Public Prosecutors Office no 09/750007-07.
90. The Court wishes to emphasise that it is aware that from the point of view of proper administration of justice and considering the fact that in all likeliness the accused will not be tried by the Rwanda Tribunal or any other court for genocide, there are good arguments to prosecute an Accused who will be tried in the Netherlands because of a suspicions of having committed war crimes and torture at the same time to prosecute for genocide. In general, the Court is of the opinion that criminal offences as in this case, which are considered by the international legal community as one of the most serious, should - if proven - not remain unpunished and that, also with a view to a proper administration of justice, the Dutch authorities must be in a position to take over the prosecution and the criminal proceedings of the international tribunals. The Netherlands has the constitutional duty to support the international rule of law (Article 90 Constitution). However, in this case, the Court is faced with a loophole in the existing legislation, which it - contrary what it has done in the above mentioned interpretation of the concept of "foreign state" in Article 4a Penal Code, cannot fill in by way of a reasonable interpretation of an Act. The legislature must provide for this loophole. As considered above, an arrangement on transfer/take over of criminal proceedings, for example by analogy in part of the arrangement of the enforcement by the Netherlands of the sentences imposed by the Tribunals, such as provided for in the Articles 11 up to and including 14 of the Implementation Act of the Yugoslavia Tribunal should contain provisions by which the criminal proceedings of the Tribunals can be transferred (see above in par. 65). This implies that political choices concerning the administration of justice have to be made. It is the legislature's duty to do so.
Other grounds
91. In the light of the above the Court can abstain from the discussion of counsel's other defences which, in his opinion should also lead toward the decision that the Public Prosecutor is not allowed to prosecute. In the extensive debate during the hearings on the question of jurisdiction, the Court feels there is reason to give some consideration to the question of whether:
I the Prosecutor has the authority to transfer cases- instead of the Trial Chamber pursuant to Article 11bis Rules of Procedure and Evidence of the Tribunal;
II whether there is a legitimate request for transfer;
III whether during the transfer of prosecution there was sufficient protection of rights of the Accused.
Re I: Is the Prosecutor competent to transfer cases?
92. In its Rules of Procedure and Evidence, the Rwanda Tribunal incorporated a provision (Article 11bis) on the transfer of prosecution by States from the Tribunal. This article concerns itself exclusively with the transfer of cases of indicted Accused ('indicted cases'). On the basis of this article the Trial Chamber decides.
93. As mentioned above in paragraph 9, the Prosecutor requested the Dutch authorities to take over the prosecution on the ground of genocide against the Accused. The defence counsel took the view that the Prosecutor, who in casu circumvents Article 11bis, is not competent to lodge such a request. According to the defence, Article 11bis is an exhaustive provision for transfer of criminal prosecution.
94. It is the conviction of the Court that international co-operation in criminal matters, normally taking place pursuant to a treaty concluded between states, in general should be governed by the principle of mutual trust. This principle - in short - implies that the requested State should rely on the quality of the requesting State's legal system, which has the consequence that the court in the requested State is not free to examine the legality of the request to co-operate.
95. In this case there is no treaty to co-operate, concluded by two sovereign States. According to the Court, however, the principle of mutual trust should be equally applicable in relation to the Rwanda Tribunal and Yugoslavia Tribunal. The Yugoslavia Tribunal as well as the Rwanda Tribunal are international criminal tribunals to which the Netherlands promised its co-operation. The system of the Yugoslavia Tribunal is qualified to be of a high level by the European Court of Human Rights (hereinafter ECtHR). Within the framework of a complaint with respect to a violation of the right to a fair trial (right to be tried within a reasonable time and by an independent and impartial tribunal) the ECtHR considered the Yugoslavia Tribunal to be:
'an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence.'
Decision with respect to admissibility, Mladen Naletili[c] against Croatia, 4 May 2000, Appl. No 51891/99
96. The Yugoslavia Tribunal and the Rwanda Tribunal, with a view to their similar way of their setting up and operation, should be put on the same footing.
97. The circumstances that in casu the request for transfer did not initially come from the Trial Chamber but from the Prosecutor, does not preclude the use of the principle of mutual trust. Just as is the case with the Yugoslavia Tribunal, the Prosecutor is more than a party in the proceedings: it is an independent body of the Tribunal bearing the full and exclusive responsibility for the examination and prosecution of criminal offences within the Tribunal's jurisdiction (Article 15, section 2, Statute of the Rwanda Tribunal).
98. The Court can only apply the marginal judicial review with respect to the Prosecutor's competence in light of the principle of mutual trust and the role of the Prosecutor. The contents of the file and the discussions during the hearing offered no points of reference for the Court to doubt the (implicit) competence claimed by the Prosecutor. The Court also took in account the circumstance that the Prosecutor is carrying out the Completion Strategy in which is recorded that also cases in which a suspect is not yet indicted ('unindicted cases') can be transferred. This procedure is internationally undisputed - as far as the Court can see -.
99. Furthermore, it is of importance that it is standard procedure that the transfer of prosecution pursuant to a treaty takes place among the authorities charged with prosecution without any judicial review.
100. The opinion of the Court that the Rwanda Tribunal for the interpretation of Article 4a Penal Code can be considered to be a 'a foreign State' likewise means that, as in case of a request for handing over by a foreign state, the prosecuting authority is considered to be a representative of this State. The Prosecutor is regarded in the same way. The Prosecutor, therefore, is entitled to request to transfer prosecution without a legal review by the Trial Chamber.
Re II: Legitimate request to take over
101. The defence further took the view that the Prosecutor had not instituted any act of prosecution against the Accused at the moment he requested the Dutch authorities to take over the Accused' prosecution. As the Prosecutor could not hand over to the Dutch authorities a (factual) file, this did not amount to a legitimate request for transfer.
102. The Court determines that the Prosecutor did not conduct his own investigation against the Accused at the time of the request to take over criminal prosecution. Consequently, he was not able to hand over a factual file to the Dutch authorities.
103. This, however, does not bar a legitimate request for transfer. For a legitimate request of transfer the only condition is that the requesting State - and therefore in casu the Tribunal - has jurisdiction and that there is a specific suspicion against a specific Accused. This is not altered by the circumstance that this specific suspicion was raised by information originating from the investigation of foreign investigation services (in casu the Dutch criminal investigation). Therefore, the requirements of a legitimate request to transfer have in casu been met.
Re III: Legal protection of the Accused
104. The defence brought forward that the Accused's legal protection was neglected during the take over of the case by the Netherlands, because the procedure ex Article 11bis of the Rules of Procedure and Evidence was not followed and the obligation of hearing the Accused ex Article 552aa, subsection 2, CPP was neglected. In doing so, according to the defence, the Public Prosecutor seriously disregarded the Accused's legitimate interests.
105. The Court states in this respect that the suspect was not 'indicted' and because of this the procedure of Article 11bis Rules of Procedure and Evidence could not be followed. Therefore, the Accused could not enjoy the legal protection mentioned by the defence.
106. Pursuant to Article 552aa, subsection 2, CCP, the Accused has the right to a hearing by the Public Prosecutor on the request to transfer the prosecution. In casu this did not happen as is admitted by the Public Prosecutor. The Court is of the opinion that this shortcoming could be remedied if the Accused, assisted by his defence counsel, is given the opportunity to advance defences against the Public Prosecutor in the same way as he would have advanced defences in case of a hearing in conformity with the regulation mentioned, after which the Public Prosecutor could deliver a reasoned opinion to the Ministry of Justice.
Conclusion
The Court dismisses the Public Prosecutor in the prosecution of the Accused of count 1 in the summons with Public Prosecutor's No 09/750007-07.
This interlocutory decision is given by
Elkerbout, LLM president
Veldt-Foglia, LLM and Sluiter, LLM judges
in presence of Van de Vrede, LLM and Van der Steen, LLM clerks of the Court
and pronounced in open court on 24 July 2007.