Practice Relating to Rule 158. Prosecution of War Crimes
The Military Manual (1993) of the Netherlands refers to Article 86 of the 1977 Additional Protocol I, noting the duty to repress grave breaches and to take measures necessary to suppress all other breaches which result from a failure to act when under a duty to do so.
The Military Handbook (1995) of the Netherlands provides: “Hostile persons who have committed a war crime and fall into the hands of [one’s] own troops must be tried.”
The Military Manual (2005) of the Netherlands provides:
Section 4 - War crimes
1132. The Geneva Conventions of 1949, which support States in establishing penal provisions to punish offenders against the rules of the law of war, also impose an obligation on States to prosecute violations and bring them to trial. The treaties of the law of war recognize the distinction between serious violations and other infringements of the obligations in the conventions. Serious breaches must be expressly threatened with punishment. No obligation applies to other infringements, i.e., more general offences against the laws and customs of war, but they may also be made punishable without an obligation to do so. This has now taken place in the Netherlands, in the form of the Act on the Criminal Law of War. Account is often taken of this distinction when determining the punishment. Of course, serious violations are breaches of the fundamental rules of the humanitarian law of war. Both the Geneva Conventions and AP I [1977 Additional Protocol I] define serious violations. Conventions enacted later (the Cultural Property Convention and the Chemical Weapons Convention) also require States to make breaches of their provisions punishable.
1135. The parties to the conflict should take action against breaches of the humanitarian law of war and take measures to prevent other breaches.
It is expressly stated also that grave breaches deriving from failure to act, where an obligation to act existed, must be penalized.
Section 5 - International Criminal Offences Act
1137. The Dutch International Criminal Offences Act (Wet internationale misdrijven
– WIM) … is a “broad” act which penalizes “the most serious crimes which fill the whole international community with concern”. It then deals with the crime of genocide, crimes against humanity (including torture, Article 4) and war crimes. Article 5 gives detailed descriptions of war crimes in an international armed conflict, Article 6 covers those in an internal armed conflict, while Article 7 contains a “safety-net provision” which makes no distinction concerning the nature of the armed conflict: this ensures that war crimes not specifically described do not go unpunished. International law not only prohibits the committing of international crimes, but also requires States to institute and maintain an effective system of exercising legal power against such crimes. The International Criminal Offences Act establishes a wide extraterritorial jurisdiction for the Dutch courts with regard to such crimes. This is partly based on the principle of universality … The International Criminal Offences Act is applicable under normal circumstances.
The aim of the Criminal Law in Wartime Act (1952), as amended in 1990, of the Netherlands is “to establish provisions concerning offences committed in the event of war and their prosecution”.
The term “war” is considered to include civil war.
The Act states: “The special courts may … take cognisance of crimes defined in the International Crimes Act [genocide, crimes against humanity, war crimes and torture].”
The International Crimes Act (2003) of the Netherlands provides for the punishment of genocide (Article 3), crimes against humanity (Article 4), war crimes committed in international armed conflicts (Article 5) or non-international armed conflicts (Article 6), and torture (Article 8). The Act also punishes “anyone who, in the case of an international or non-international armed conflict, commits a violation of the laws and customs of war other than as referred to in Articles 5 and 6”.
In the Ahmed case
in 1996, the Administrative Law Division of the Council of State of the Netherlands ruled that a Somali national could not be granted the protection of the 1951 Refugee Convention since he was suspected of having been involved in committing crimes against humanity and, being a high-ranking soldier and acting on behalf of the Somali Government, was thus guilty of acts contrary to common Article 3 of the 1949 Geneva Conventions.
Similar judgments were pronounced by the same body in the Hamoud case
and in the Chantirakumar case
The Report on the Practice of the Netherlands, with respect to the 1984 Convention against Torture and its ratification procedure in the Netherlands, and referring to decisions of the Dutch Administrative Law Division of the Council of State to refuse protection under the 1951 Refugee Convention to persons suspected of having been involved in committing crimes against humanity and crimes in violation of common Article 3 of the 1949 Geneva Conventions, states: “The Dutch government completely complied with the treaty requirements.”