Practice Relating to Rule 159. Amnesty
Section B. Prohibition on amnesty for war crimes
The Military Manual (2005) of the Netherlands states:
An amnesty granted to a war-crimes suspect by his own government does not prevent his prosecution by other States. The question naturally then arises whether prosecution is wise. If agreement has just been reached on a ceasefire, such prosecution will result in political conflict in the State and not contribute to stability. But, after a while, the reverse may seem just.
In 2007, in its judgment in the Abdullah F case, the Hague District Court of the Netherlands stated:
The defence also argued that there could be no conviction, claiming that in the meantime an amnesty law had entered into force in Afghanistan. The Court explains this argument as a plea to disallow the public prosecutor: because of the amnesty law the Public Prosecution Service would not be entitled to criminal proceedings.
In his closing speech the public prosecutor submitted a translation of what is said to be the final text of that law adopted by the Afghan Parliament, which meanwhile – according to a message on the internet submitted by the defence – would have been signed by the President of Afghanistan. The public prosecutor stated that he did not know if the President had indeed passed this law by signing it.
Although it has not been established whether this amnesty law entered into force in Afghanistan, the Court is aware of the fact that in Afghanistan discussions were held about a possible amnesty for persons who were involved in the various hostilities and armed conflicts during the past 25 years. It appeared that such an amnesty regulation is not undisputed. Opponents point out that this law has been adopted by warlords who themselves would have to fear most if they were to be prosecuted. Whatever the result of that discussion may be, the Court believes that the entry into force of such a law in Afghanistan does not automatically imply that the Dutch Public Prosecution Service is no longer entitled to start criminal proceedings against suspects who are residing in the Netherlands. However, based on the text that was produced during the hearing, the Court believes in any case that there is no general pardon for individual crimes, so the right of victims to contest these crimes remains intact.
This also refers to the earlier considerations regarding legality. However, the Court is aware of the fact that an amnesty regulation can have great importance within the framework of the attempts to reach reconciliation and recovery of stability. This does not affect the unbearable thought that war criminals would be able to travel freely abroad and could end up standing there face to face with their victims who meanwhile have fled to other countries. This does not only involve the Afghan, but also the Dutch legal order.
In this respect the District Court considers that the fact that an amnesty regulation has been adopted should not be overlooked, but at the same time this does not imply that the right to prosecute should become ineffective.