ECHR: Dutch businessman properly convicted by Dutch court as an accomplice in Iraqi Mustard Gas Attack

STRASBOURG. On July 6, 2010, the European Court of Human Rights (‘the Court’) declared that the application, lodged by Dutch businessman Frans van Anraat against the Netherlands, was inadmissible.

In the 1980s, Van Anraat supplied the Iraqi government with the chemical thiodiglycol, used to produce mustard gas. He became Iraq’s sole supplier of the chemical in 1984. He was later charged as an accessory to Saddam Hussein and Ali Hassan Abd al-Majid al-Tikriti (known as ‘Chemical Ali’), Secretary General of the Ba’ath Party in northern Iraq from 1987 to 1989, who led the attacks both the Iranian army during the Iran-Iraq war, and on Kurdish civilians in northern Iraq. These attacks led to the deaths and injuries of thousands of people.

In 2005, Van Anraat was convicted as an accomplice to genocide by the District Court of The Hague, which was later changed by The Hague Court of Appeal to being guilty of the violations of the laws and customs of war. He was subsequently sentenced to fifteen years in prison. In June of 2009, the Dutch Supreme Court upheld the ruling by the Court of Appeal that Van Anraat was guilty of the abovementioned crime.

Van Anraat lodged his case before the ECHR in December of 2009. He claimed that the Netherlands had violated the European Convention on Human Rights in two ways.

Firstly, Van Anraat claimed that the Dutch Supreme Court had not given him a fair hearing (violation of article 6) by not answering his argument that since Saddam Hussein and Ali Hassan Abd al-Majid al-Tikriti were not under the jurisdiction of the Dutch court due to the immunity granted to them as members of a State (and in Hussein’s case, as head of state), he also could not be convicted as their accessory. The Court responded to this by stating that the submission was not made during the appeal phase. Therefore, it was considered a new point and not an argument which could be raised before the Court. In addition, since Van Anraat did not bring up this argument until the final instance at the Dutch Supreme Court, Article 6 § 1 did not compel it to provide a reasoned response.

The second argument which Van Anraat put forth was that the Netherlands had violated Article 7 of the Convention by finding him guilty of a violation of section 8 of the War Crimes Act, which, in his view, according to international law, was not in line with the requirement that criminal acts be described with sufficient precision (lex certa). In other words, he argued that the War Crimes Act was too vague and imprecise to be able to convict him in this matter. In response to this, the Court stated that

“83. […] it is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists […]”

The Court stated furthermore, that Van Anraat’s actions at the time of their having been committed was also a violation of customary international law, and that he would therefore have been aware of the illegality of his acts.

“92. The Court thus finds that at the time when the applicant supplied thiodiglycol to the Government of Iraq a norm of customary international law existed prohibiting the use of mustard gas as a weapon of war in an international conflict.
[…] 96.In conclusion, it cannot be maintained that, at the time when the applicant was committing the acts which ultimately led to his prosecution, there was anything unclear about the criminal nature of the use of mustard gas either against an enemy in an international conflict or against a civilian population present in border areas affected by an international conflict. The applicant could therefore reasonably have been expected to be aware of the state of the law and if need be to take appropriate advice (see Cantoni v. France, cited above, § 35).”

For these reasons, the Court unanimously declared Van Anraat’s application to be inadmissible.


Press release issued by the ECHR, July 6, 2010

Decision on Admissibility, Van Anraat v. the Netherlands, appl. no. 65389/09