THE HAGUE. On 30 June 2009 the Supreme Court of The Netherlands ruled that a businessman, Van A., had been rightfully charged an accessory to the violations of the laws and customs of war, resulting in killings and inflicting grievous bodily harm. The Supreme Court also ruled that a Dutch Court has jurisdiction to judge a case concerning criminal acts as mentioned in Article 8 of the Dutch Wartime Offences Act.
During the 1980s Van A. supplied the Hussein regime with large quantities of raw material (TDG) for the production of mustard gas. The mustard gas thus produced by Iraq, was used by the Hussein regime from the mid eighties on against military and civilian people in a war against Iran and in an internal campaign against the Kurdish population in the northern part of Iraq.
Van A. had been charged as an accessory to violations of the laws and customs of war, resulting in death and grievous bodily harm.
At the time Article 8 of the Dutch War Time Offences Act (Wet Oorlogsstrafrecht) was applicable to the charges. On 23 December 2005 the District Court in The Hague sentenced Van A. to fifteen years imprisonment. Both Van A. and the public prosecutor appealed.
The Court of Appeal sentenced Van A. on 9 May 2007 to a term of imprisonment of seventeen years. The Court of Appeal disallowed the claims for damages, submitted by the injured parties, based on the ground that those claims are not of an uncomplicated nature, a requirement for having such (civil) claims judged by a criminal court.
Below is a summary of the judgment of the Supreme Court:
Proceedings at the Supreme Court
The defendant has appealed in cassation at the Supreme Court. His counsel, Mr. G. Spong, has argued that Dutch Court has no jurisdiction to try a case concerning criminal acts as mentioned in Article 8 Wartime Offences Act. Moreover, he argues that the description of the criminal acts in Article 8 Wartime Offences Act is too vague. He also argues that the Court of Appeal has ruled on insufficient evidence that the defendant committed the crimes deliberately. His further complaints in cassation deal with evidence and the sentence itself rendered by the Court of Appeal.
According to counsels for the injured parties, Mr. A.A. Franken and Ms. L. Zegveld, the Court of Appeal should have ruled in the matter of the claims for damages.
Advocate-general mr. A.J.M. Machielse advised the Supreme Court in his advisory opinion of 18 November 2008 to reject the complaints of the defendant. Furthermore he advised the Supreme Court to rule in favour of the injured parties.
The ruling of the Supreme Court
In the case against the defendant:
The Supreme Court rejects the appeal in cassation by the defendant. It finds that the defendant has been rightfully charged an accessory to the violations of the laws and customs of war, resulting in killings and inflicting grievous bodily harm. It also rules that a Dutch Court has jurisdiction to judge a case concerning criminal acts as mentioned in Article 8 Wartime Offences Act. This article furthermore defines sufficiently the criminal acts and behaviour to be prosecuted.
The Court of Appeal has argued and found proven that the defendant has committed these crimes deliberately.
The Court of Appeal has held that, based on the available evidence:
- the defendant knew, at least from 1986 on, that his supplies of TDG were being used for the production in Iraq of poisonous gas and mustard gas, during a long lasting war with Iran and he also knew that this poisonous gas would be used in this war;
- the defendant knew that he was supplying the means for actually using mustard gas in the war, due to his deliberate contribution to the production of mustard gas;
- the TDG delivered by the defendant has actually been used for the production of mustard gas as ammunition, and has been used during the attacks mentioned in the indictment;
- from 1985 on the Iraqi regime depended solely on TDG supplies by the defendant for its production of mustard gas, causing the on-going policy of the regime to use hundreds of tons of this poisonous gas per year, from 1984 on, to be continued.
The Supreme Court holds that the facts assessed by the Court of Appeal allow to conclude that the defendant has acted deliberately.
Several other complaints concerning the evidence and the sentencing to 17 years of imprisonment have been rejected by the Supreme Court.
As the proceedings in cassation have taken an unreasonably long period, the Supreme Court has reduced the defendant’s term of imprisonment to sixteen years and six months.
In the case of the injured parties:
The Supreme Court rules that the Court of Appeal had decided correctly in disallowing the claims for damages by the injured parties, on the grounds that those (civil) claims are too complicated to be judged in this criminal case.
Consequences of the ruling of the Supreme Court
The sentence by the Court of Appeal in The Hague of 9 May 2007 has become final, except for the term of imprisonment. The Supreme Court has ruled this term to be sixteen years and six months.
The ruling has been published in Dutch on www.rechtspraak.nl and can be retrieved via www.rechtspraak.nl (LJN number BG4822). An English translation of the full ruling will be published by the Supreme Court in due time.
