Practice Relating to Rule 157. Jurisdiction over War Crimes
The Military Manual (1993) of the Netherlands states:
Each country is competent to prosecute and try war crimes, irrespective of the nationality of the perpetrator, or of the country where the war crime was committed or against whose interest it was committed. The rules on extradition of persons suspected of having committed, or ordered the commission of, a war crime are closely connected to the principle of universality …
The Criminal Law in Wartime Act [as amended] has not entirely incorporated the principle of universality as foreseen in the law of war treaties. It requires that the Netherlands be involved in an armed conflict (Article 1). A Dutch judge is not competent in case the Netherlands is neutral or not a party to the conflict.
The Military Handbook (1995) of the Netherlands provides: “Hostile persons who have committed a war crime and fall into the hands of [our] own troops must be tried.”
The Military Manual (2005) of the Netherlands provides:
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 extra-territorial 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.
1139. To use penal law against violations of the humanitarian law of war, it is important that the Geneva Conventions are based on the principle of universality with regard to these punishable offences. The principle means that each country is authorized to prosecute and judge war crimes, irrespective of the nationality of the perpetrator or of the country or interest against which the war crime was committed.
1140. The universality principle is closely linked to the rule on the transfer of persons suspected of having committed or ordered a war crime. Generally, States are bound to grant each other as much mutual assistance as possible in matters of criminal procedures relating to serious violations. They must cooperate as much as possible in handing over war criminals.
1141. Judicial competence or jurisdiction implies that, by law, a judicial authority is appointed with power to have cognizance of alleged criminal acts committed by a given (categories of) persons. The power of the Public Prosecutor’s Office to undertake investigative work in these matters derives accordingly from this power.
1142. Article 2 of the WIM establishes extraterritorial universal jurisdiction with regard to international crimes. This universal jurisdiction is limited to situations where a suspect is located in the Netherlands. In that situation, the Netherlands should try the suspect or hand him over to another State or legal institution which has established jurisdiction over such crimes (transfer for serious offences is governed by the Act on Transfer for War Crimes; while transfer to the International Criminal Court is governed by the Act Implementing the International Criminal Court). In addition to universal jurisdiction, the Netherlands has also established judicial competence based on the active and passive nationality principle. This means competence for acts committed by or against a Dutch citizen or Dutch legal person outside the Netherlands.
1143. The ordinary penal divisions of the District Court and Court of Justice of The Hague have been appointed as the authorized judicial authorities. The military chambers at the District Court and Court of Justice in Arnhem remain competent at all times for the military.
1144. In addition, a general decree may require particular courts and a Special High Court also to have cognizance of crimes described in the [Dutch] International Criminal Offences Act.
1145. The establishment of universal jurisdiction with regard to international crimes is necessary because, by virtue of its ratification of the Statute of the International Criminal Court (Rome Statute), the Netherlands has to prosecute and judge the crimes mentioned repeatedly above. Before the existence of the WOS, the Netherlands had established no universal jurisdiction for crimes against humanity. The International Criminal Court has jurisdiction which complements national jurisdiction in criminal matters. This means that the International Criminal Court may act only if no State is willing or able actually to conduct the investigation or prosecution. Now that the Netherlands has established jurisdiction over the crimes mentioned in the Rome Statute, Dutch judges may try these matters and, in principle, Dutch citizens do not have to be handed over to the International Criminal Court for trial.
The Criminal Law in Wartime Act (1952), as amended in 1990, of the Netherlands stipulates that Dutch criminal law shall apply:
(1) to any person who commits an offence described in Articles 4–7 outside the Kingdom but within Europe, if that offence is committed against or in connection with a Dutch citizen or a Dutch legal entity or if any Dutch interest is or may be adversely affected thereby;
(2) to any person who commits an offence described in Articles 131–134 bis, 189 and 416–417 bis of the Penal Code outside the Kingdom but within Europe, if the offence in those Articles is an offence within the meaning of (1) above;
(3) to a Dutch citizen who commits an offence described in Article 1 outside the Kingdom but within Europe.
The International Crimes Act (2003) of the Netherlands provides:
1. Without prejudice to the relevant provisions of the [Penal Code as amended] and the [Military Criminal Law as amended], Dutch criminal law shall apply to:
(a) anyone who commits any of the crimes defined in this Act [genocide, crimes against humanity, war crimes and torture] outside the Netherlands, if the suspect is present in the Netherlands;
(b) anyone who commits any of the crimes defined in this Act outside the Netherlands, if the crime is committed against a Dutch national;
(c) a Dutch national who commits any of the crimes defined in this Act outside the Netherlands.
3. Prosecution on the basis of subsection 1 (c) may also take place if the suspect becomes a Dutch national only after committing the crime.
In the Ahlbrecht case
in 1947, the Special Court of Cassation of the Netherlands quashed the conviction of the accused imposed by the Lower Court on the ground that the latter lacked jurisdiction over war crimes alleged to have been committed by members of the enemy forces.
The Court reviewed the practice relating to trials of war criminals since the end of the First World War, including the relevant provisions of the Treaty of Versailles, the Declarations of St. James and Moscow, and the Charters of the International Military Tribunals and concluded that it could no longer be said that the Netherlands lacked jurisdiction over enemy war criminals. It added, however, that it did not follow from this conclusion that in the actual state of legislation in the Netherlands any particular court would automatically have jurisdiction over enemy war criminals. For this, the Court considered, something more was required, such as a directly applicable international convention or national legislation conferring the jurisdiction which the State possessed under international law upon a municipal court. In the absence of such measures, no local courts had the necessary jurisdiction. As a result of the Special Court of Cassation’s decision, an amendment was made to the Extraordinary Penal Law Decree which criminalized war crimes and crimes against humanity as defined in the 1945 IMT Charter (Nuremberg) committed during the Second World War regardless of the nationality of the offender, the victim or the place where the crime was perpetrated.
The jurisdiction given to the courts of the Netherlands by the above-mentioned amendment formed the basis of the decision of the Special Court of Cassation in the Rohrig and Others case
Here, the Court rejected the arguments of the accused that the amendment limited the jurisdiction of the courts to crimes committed on the territory of the Netherlands. The Court also upheld the validity of the amendment on the ground that:
There was a rule of customary international law by which those who violate the rules of war can be punished by those into whose hands they have fallen (the so called theory of detention). This rule has the same universality as that applied internationally in the rule which treats pirates as enemies of mankind.
In the Knesević case
in 1997 involving a Bosnian Serb accused of having committed war crimes (murder, deportation to a concentration camp, attempted rape) in the territory of the former Yugoslavia (Bosnia and Herzegovina), the Supreme Court of the Netherlands acknowledged universal criminal jurisdiction irrespective of whether the Netherlands was involved in the conflict. The Court referred to the explanatory memorandum submitted to the Dutch Parliament in the context of the adoption of the Criminal Law in Wartime Act, which interpreted Article 3 of the Act so as to give the Dutch courts competence to try war crimes (including grave breaches and violations of common Article 3 of the 1949 Geneva Conventions), regardless of where or by whom they had been committed.
In an explanatory memorandum on ratification of the 1984 Convention against Torture presented during the 1986–1987 Session of the Dutch Parliament, the Ministers of Justice and of Foreign Affairs of the Netherlands declared that the mere fact that very severe offences that caused indignation and anxiety were involved could not in themselves justify the application of the principle of universal jurisdiction to such offences. Repression of these violations should be left to the States that had a tie with the person or the place where the crime was committed. If not, a tendency to interfere could emerge and criminal law was not considered to be the most suitable instrument to resolve political conflicts.
In 1999, in its third periodic report to the Committee against Torture, the Netherlands referred to its Criminal Law in Wartime Act as amended and to the 1997 ruling of the Supreme Court of the Netherlands in the Knesevic case, and stated:
Anyone in the Netherlands who is suspected of war crimes can be prosecuted [there]. A special National War Criminals Investigation Team – the NOVO – has been set up to target not only crimes under the Criminal Law in Wartime Act, but other crimes against humanity as well, such as torture.