Practice Relating to Rule 151. Individual Responsibility
The Military Manual (1993) of the Netherlands contains a provision entitled “Individual responsibility”, which refers to the detailed provisions on the suppression and punishment of war crimes contained in the manual.
The Military Manual (2005) of the Netherlands states:
In the modern development of international legal transactions, the individual is also recognized as a possible legal subject in international law. This is important for the functioning of the humanitarian law of war. It means that the individual himself is a legal subject and, as such, possesses the rights granted under the law and is bound by the obligations imposed by the law. In addition to States and international organizations, individuals can be directly subject to the requirements of international law. According to the general prevailing opinions, areas in which the individual acts as a holder of rights, and a subject of obligations, directly deriving from international law, include large parts of the humanitarian law of war.
The manual also states: “Individual criminal liability for war crimes is a consequence of the recognition of the individual as a legal subject in international law.”
In its chapter on the prevention and punishment of war crimes, the manual provides:
1107. The commanding officer’s responsibility does not prevent an individual member of the military from being held directly liable under the humanitarian law of war (see point 1121).
1121. Individual personal responsibility and the responsibility of senior military figures and commanding officers
Every member of the military is personally responsible for compliance with the humanitarian law of war. Senior military officers should emphasize this by their exemplary personal behaviour. They should make it clear that everyone must be guided by conscience in upholding the humanitarian law of war.
Section 6 - Penal liability
1146. Any member of the armed forces holds personal responsibility to act in accordance with the humanitarian law of war. Moreover, he must do everything within his power to ensure that others so act. Finally, he should take measures whenever he becomes aware of breaches of the humanitarian law of war.
1147. The humanitarian law of war is not binding on States alone, but also on individuals. Penal liability exists not only for crimes an individual has committed, but for connivance in the crimes of others, as an accessory, perpetrator, accomplice or inciter.
1148. Attempts and preparation of war crimes (e.g., by providing means of transport or accommodation) are also punishable.
The Criminal Law in Wartime Act (1952), as amended in 1990, of the Netherlands establishes provisions “concerning offences committed in the event of war and their prosecution”, expressly stating that the term “war” shall include civil war.
The International Crimes Act (2003) of the Netherlands provides for the punishment of
anyone who commits any of the crimes defined in this Act outside the Netherlands, if the suspect is present in the Netherlands … [or] if the crime is committed against a Dutch national; [or] any Dutch national who commits any of the crimes defined in this Act outside the Netherlands.
The crimes defined in the Act are 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 its judgment in the Van Anraat case in 2005, the Hague District Court of the Netherlands stated:
[C]omplicity in war crimes … [does] not require a special intent of the perpetrator. The required intention of the accomplice in international administration of criminal justice is not essentially different form Dutch law on this subject. In as far as any differences can be pointed out, in the opinion of the court, these lie within the “acceptable margin”, as put into words by the legislator in the Explanatory Memorandum to the International Crimes Act (WIM):
“It would not be practical and cause unnecessary uncertainty, if the Dutch judge were to apply participation clauses and grounds for exemption from criminal liability in legal proceedings against international crimes, that are somewhat different from the provisions he is used to work with.” (Explanatory Memorandum, Parliamentary Documents II, 2001–2002, 28 337, nr. 3, page 29.)
The court establishes that the damages of the aggrieved parties have been caused by the dropping of bombs, filled with poison gas, by the government of Iraq. The proven facts with respect to the actions of the accused concern the supply of precursors for the production of the said poison gas. The violated norm of complicity in being a co-perpetrator of a violation of the laws and practices of war, also serves as a protection against damages such as the damages that the aggrieved parties have suffered.
In its judgment in 2007, the Hague Court of Appeal stated:
12.1.1 … it is an established fact that the defendant in 1985 and the following years supplied Thiodiglycol (TDG) to Iraq, knowing that this substance is a precursor for mustard gas. The Court is of the opinion that the defendant at least must have known that it was to be expected that the produced mustard gas would be implemented on the battle field, not only in the international armed conflict in which Iraq and Iran had been involved already for years, but also against the Kurds in their own country who had chosen the side of Iran, thus engaging themselves in the conflict.
For the judgment of the charges “being an accessory to the violation of the laws (and customs) of war by the rulers in Iraq by supplying them with the aforementioned precursor TDG” it is important to establish what role defendant’s deliveries have played in the production of mustard gas and the actual implementation of ammunition that had been filled with that gas, at the locations that are mentioned in the charges.
12.4. Legal framework of the ruling
Regarding the supplies of TDG to the Iraqi regime under consideration, the question needs to be answered whether the defendant (together with his co-perpetrator(s)) by doing so provided the opportunity and/or means to carry out the attacks described in the charges in 1987 and 1988 on the places referred to in Iraq and Iran. Article 48 of the Penal Code does not specify which interest the provided opportunity and/or means should have had for the committed criminal offence.
From case law administered by the Supreme Court it appears that it is not a requirement that the assistance offered should be indispensable (HR 15-12-1987 NJB 1988.99) or should have made an adequate causal contribution to the main offence (HR 8-1-1985 NJ 1988.6). It is sufficient when the assistance offered by the accessory has indeed promoted the offence or has made it easier to commit that offence (HR 10-6-1997 NJ 1979.585 concerning the provision of information). From an international criminal law perspective, these requirements for the contribution of the so-called “aider or abettor” are not essentially more severe.
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the International Law Commission’s work on the Nuremberg Principles, and in reply to a statement by the United Kingdom “that the concept of the direct responsibility of the individual under international law without the interposition of the national State was ‘convenient and picturesque’ but unscientific”, the Netherlands emphasized that it was apparent from the judgment of the 1945 International Military Tribunal for Germany that “there were rules of international law which applied directly to individuals, without passing through the intermediary of national law, and that some obligations of international law transcended the obligations imposed by the national administration”.