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X. Netherlands

Under the International Crimes Act of June 19, 2003 (ICA),³¹⁸ Dutch courts can exercise universal jurisdiction over genocide, war crimes, crimes against humanity and torture provided that the perpetrator is present in the Netherlands and that the crimes were committed after the entry into force of the act on October 1, 2003.³¹⁹ International crimes committed before that date have to be dealt with under previous law, the Wartime Offenses Act of July 10, 1952, the Genocide Convention Implementation Act of 1964 and the Act implementing the Convention against Torture of 1988.³²⁰

Since 2001 prosecutions based on universal jurisdiction and leading to a conviction include the case of Sebastien Nzapali, a Congolese national who was sentenced to two–and-a-half years of imprisonment on April 7, 2004, for leading death squads in Kinshasa between 1990 and 1995.³²¹ In October 2005, two perpetrators from Afghanistan were condemned to twelve and nine years of imprisonment respectively for their involvement in war crimes and torture in Afghanistan.³²² Proceedings are currently suspended in a case against former Suriname President Desi Bouterse, accused of playing a key role in the murder of fifteen opposition political party members in Suriname. In 2001 the Dutch Supreme Court found that the accused could not be tried in absentia, and that the Act Implementing the Torture Convention could not be applied retroactively.³²³

A. Jurisdictional Challenges

1.   Presence

The ICA expressly requires the suspect’s presence in the Netherlands for Dutch authorities to carry out an investigation based on universal jurisdiction.³²⁴ The legislation does not specify at which stage of a case the suspect has to be present for an investigation to start, but practitioners indicated to Human Rights Watch that an investigation will only be opened in cases where the suspect is present in the Netherlands.³²⁵ It is often challenging for individual victims to prove this presence, particularly for those who are not represented by a lawyer or who do not have the support of an NGO. Furthermore, the presence must be voluntary and Dutch courts will not issue an extradition request to secure a suspect’s presence in the Netherlands. In Bouterse, the Supreme Court found that the accused, who was no longer a Dutch national following Suriname’s independence from the Netherlands in 1975, could not be prosecuted in the Netherlands unless he appeared voluntarily on Dutch territory.³²⁶

2.   Immunities

The ICA recognises immunity in accordance with international law for foreign heads of state and government and ministers of foreign affairs. This immunity is expressly limited to the time they are in office. Other persons enjoy immunity from the prosecution of these crimes in so far as it is recognized under customary international law or under any convention applicable within the Netherlands.³²⁷

3.   Limitations

Statutes of limitations as contained in articles 70 and 76 of the Criminal Code do not apply to the crimes referred to in the ICA, with the exception of some war crimes referred to in section 7(1) of the ICA.³²⁸

4.   Subsidiarity

Dutch authorities will only exercise universal jurisdiction if neither the territorial courts nor the ICC is exercising jurisdiction. 

B. Practical Arrangements for the Exercise of Universal Jurisdiction in the Netherlands

1.   Special departments in charge of the investigation and prosecution of international crimes

a. Police

In 1998, a specialized war crimes team, NOVO,³²⁹ was set up by the Dutch government following an influx of alleged perpetrators seeking refuge in the Netherlands. After a negative evaluation of the NOVO team’s performance in 2002,³³⁰ the war crimes unit now forms part of the Dutch national crime squad and was integrated into the Landelijk Parket (Prosecution Services). The capacities of the war crimes unit were doubled, and currently thirty-two people are working in the unit on a day-to-day basis on international crimes, ranging from administrative staff to criminal intelligence officers and investigators. The unit has a pool of experts at its disposal, including chemical weapons experts, criminal scientists, historians and anthropologists. Rather than employing these experts on a permanent basis, the unit recruits them as needed.³³¹ Since the evaluation in 2002, the strategy of investigating international crimes has changed and the emphasis is now on investigating abroad wherever this is feasible.³³² Cooperation with the immigration authorities, ministries and in particular the Prosecution Service has improved.³³³ Following these changes, three perpetrators of international crimes have been brought to justice on the basis of universal jurisdiction, resulting in a positive evaluation of the team’s performance in February 2006.³³⁴

b. Prosecution

Several prosecutors form a department in the Landelijk Parket, working in close cooperation with the war crimes unit.  The department became operational in 2003 following a decision taken by the Ministry of Justice to extend the mandate of the National Prosecutor’s Office in Rotterdam to international crimes.³³⁵  Six staff in the department work on international crimes: two prosecutors, two legal assistants (one of whom is an expert in international criminal law), and two administrative assistants.³³⁶

2.   Notification

The two primary modes of notification of international crimes are the immigration services and the media.³³⁷ Persons seeking asylum in the Netherlands are screened by the Immigration and Naturalization Service (IND) for possible involvement in international crimes.  The screening forms part of the application of the definition of “refugee” in the 1951 Refugee Convention.³³⁸  The Dutch IND has a special unit dealing exclusively with suspected “1F” cases. Where there is a suspicion of involvement in international crimes after two screening interviews, a third interview focusing exclusively on 1F issues will follow. If an asylum seeker’s claim is rejected on the grounds of alleged involvement in an international crime, the file is then sent to the prosecution authorities. One criterion that can place an asylum seeker on the list of 1F files is his or her former profession: in the 2005 Afghan war crimes case, the two accused were placed on the list because of their former rank as generals in the Afghan army.

In 2003, seventy 1F cases were referred to the prosecution services, 82 percent of which were not investigated after applying certain criteria,³³⁹ while the remaining 18 percent are still being considered. In the case of Nzapali, the immigration authorities refused to grant him refugee status on the basis of his possible involvement in international crimes. The police commenced investigations after some of his former victims recognized Nzapali and denounced him to the police.³⁴⁰

3.   Decision to investigate and to prosecute

Although the war crimes unit and prosecution authorities discuss cases together, each has their own role: while the prosecution authorities look at a case from the judicial point of view, the police assess the evidence and the chances of a successful investigation. A list of criteria drawn up by the unit for every case involving international crimes is available to the prosecution to enable it to reach a decision about whether to investigate a complaint.³⁴¹ Where legal problems or a lack of evidence do not pose barriers, the prosecution considers a complaint on the basis of its mission statement: that the Netherlands should not become a safe haven for perpetrators of international crimes and should not permit its own nationals to go unpunished for international crimes committed abroad.³⁴²

Where the prosecution decides not to investigate, the complainant is informed and can appeal to the Appeals Court, which will consider the complaint and, where it considers it appropriate, order the prosecution to start an investigation.³⁴³

4.   Investigation

The war crimes unit is proactive in the field—in addition to conducting national research in open sources at the outset of the investigation, the unit travels to the scene of the crimes and investigates on site. In past cases, 80-90 percent of the evidence was gathered abroad.³⁴⁴ Whenever the unit considers an investigation of international crimes, staff take into account the possibility of going abroad and any associated risks and problems. Before going abroad they look for evidence in the Netherlands, establish contact with exile communities and review NGO reports. When they go abroad, they make several trips: first, an informal trip is organized to establish contacts with the relevant authorities in countries with which no mutual legal assistance agreement exists or with countries where the security of everyone involved cannot be guaranteed. In difficult cases the unit sends two criminal intelligence officers who look for evidence and establish contacts with potential witnesses. Once the investigation by the unit is complete, they present their findings to an investigative judge. Then the prosecution service, an investigative judge and, where possible, the defense lawyer, travel to the territorial state to take statements of the witnesses found by the war crimes unit and carry out further investigations.³⁴⁵ In the case of Nzapali, Dutch officials spent several months pursuing an investigation in the Democratic Republic of Congo, in collaboration with Congolese authorities and NGOs.³⁴⁶

C. Cooperation

1.   National cooperation

There is cooperation between the immigration authorities, the war crimes unit and the prosecution services in the investigation and prosecution of universal jurisdiction cases.  Complexity arises due to the need for coordination between the Prosecution Services and the Ministries of Justice and Foreign Affairs in the execution of requests for legal assistance in foreign countries.  Each ministry evaluates requests for cooperation in light of its own mandate and priorities. The Ministry of Justice has a special department responsible for mutual legal assistance in criminal matters, and a policy and legal advisor dealing exclusively with requests from the war crimes unit and units from other countries. The department looks at the legal, policy and ethical implications of requests for legal assistance.³⁴⁷

EU mechanisms have streamlined requests for legal cooperation among EU member states, because they permit such requests to be made directly to the relevant judicial authorities. However, where corresponding authorities do not exist in the territorial state, where there is no mutual assistance treaty or where the safety of investigators, witnesses and victims cannot be guaranteed, an alternative approach may be used.³⁴⁸ The approach favored by Dutch investigators in the past has been to present their case and related requests to the Dutch embassy or consulate in the relevant territorial state, which then attempts to facilitate contacts with local authorities or witnesses. In establishing contact for an extraterritorial investigation the emphasis was placed on ensuring compliance with the principles of international law and respecting the sovereignty of the territorial state.

2.   International cooperation

a. EU Network and Interpol

The EU Network is utilized as a mechanism for sharing information and experiences, and to discuss challenges faced in relation to legal assistance.³⁴⁹ Interpol is engaged as a source of practical guidance in relation to investigations.

b. Cooperation with the territorial state

Investigations have taken place in various countries including Afghanistan, Iraq, the Democratic Republic of Congo, Liberia, and Sierra Leone. Because investigations often involve more than one country, it has proved impossible for the war crimes unit to contact the relevant Ministry of Justice or Ministry of Foreign Affairs for every piece of evidence they require from foreign states. In one case they received a reply from an authority of another country more than a year after their original request for assistance.³⁵⁰ Instead, investigators travel directly to the relevant country and present their case to the Dutch embassy and use embassy staff to establish contact with relevant people.  Investigators also use their time in the territorial state to explain why they are pursuing the crime, and to encourage witnesses to come forward. They take translators from the Netherlands after screening them carefully for any potential involvement in the case or relationship to witnesses.

D.  Role and Rights of Victims and Witnesses

1.   Victims—Compensation and legal representation

Victims of international crimes can bring a claim for compensation in criminal proceedings, provided that their claim is not too complex and can be determined by the court during criminal proceedings.³⁵¹ (The majority of victims in the Afghan case lived in the territorial state and none lived in the Netherlands. In the Nzapali case, victims who lived in the Netherlands denounced Sebastien Nzapali to the Dutch police. The issue of compensation did not arise in either case, and the investigators do not raise the issue of compensation with victims.³⁵²)

Once the prosecution has been informed or receives a name of a victim, they will contact the victim and explain the proceedings, the rights of the victim and suggest an informal meeting. This includes information on the possibility of appeal should the prosecution decide not to investigate. The decision concerning whether to investigate can take months. The lawyer can assist the victim in lodging a complaint and an appeal if necessary. Legal representation can also push the prosecution to open an investigation, especially where the investigation is politically sensitive.³⁵³

2.   Witnesses

The war crimes unit investigates in the Netherlands within the relevant emigré community and tries to establish contacts there first. Once one witness is identified, this witness is relied on to identify other witnesses in the Netherlands, the territorial state, or elsewhere. The investigators have to find witnesses for both parties, but first look for incriminating witnesses, and only search for defense witnesses at the end of the investigation. This is in order to prevent defense witnesses from warning the suspect that he or she is being investigated against, and thus risking the suspect’s escape.

Dutch investigators interview witnesses in Dutch embassies or diplomatic missions in the territorial state (in one case, an interview took place at the headquarters of the UN peacekeeping mission in a state). In order to reduce witnesses’ exposure to publicity and help preserve confidentiality, witnesses are sometimes provided with pretexts to visit the place of the interview, and investigators avoid being seen in public with witnesses.³⁵⁴ Other means of protection have included providing witnesses with mobile phones, relocating witnesses, or providing them with financial means to hide for a certain period. Investigators warn witnesses of potential threats, and explain the limited ability of Dutch investigators to protect the witness in the territorial state.

It is common for Dutch courts to have witness testimonies read out during trial. In the recent Afghan war crimes trial, only one witness from overseas testified in person, while testimonies from other Afghan witnesses were read out in court. According to the prosecution, there are several reasons why witnesses are not heard in person in court, including a lack of funds available to provide for travel and accommodation, and the fact that witnesses often do not have a passport and therefore cannot travel to the Netherlands. In past cases it has been more convenient for Dutch officials to travel to the territorial state to take testimonies on site. No witnesses from Congo testified in person in the Nzapali trial. Witness testimonies were taken by a Dutch magistrate and the lawyer for the accused, who went to Congo to facilitate the questioning of witnesses. The testimonies were subsequently read out at the trial in the Rotterdam district court.

E.  Fair Investigation and Trial

The accused is entitled to legal aid where he or she cannot afford to pay for legal representation. Witnesses for the defense are often provided by the defendants themselves, but if defense counsel wishes to conduct his or her own investigations in the territorial state, an application must be made to the court for additional funds. In the Afghan (Hesham and Jalalzoy) case,³⁵⁵ defense counsel asked the court for funds to pay for a private investigator. Travel costs to Afghanistan were awarded, but not the costs of hiring an investigator or traveling within the country.³⁵⁶ Additionally, funds for insurance were not sufficient and the lawyer could not accompany the prosecution and investigating judge on a second trip.

Defense counsel for Hesham raised several issues which she contended negatively affected the fairness of the trial.  Although the investigative judge is required to investigate inculpatory and exculpatory evidence, defense counsel contended that the defense did not have adequate time and resources to prepare the defense case, and was thus unable to conduct in-country research, obtain the translation of documents or even attend depositions taken by the investigative judge in Afghanistan.  The defense also complained that the prosecution was granted unfair access to the defendants’ immigration files in violation of their right to privacy. Testimonies of a number of witnesses were taken without the opportunity for defense counsel to be present and question them.³⁵⁷  The prosecution emphasized, however, that the defense had had the opportunity to question witnesses via video conference but had not made use of this.³⁵⁸