Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section E. Cooperation with international criminal tribunals
The Act on the Establishment of the ICTY (1994) of the Netherlands states:
At the request of the Tribunal, persons may be surrendered to the Tribunal for prosecution and trial on account of criminal offences in respect of which the Tribunal has competence pursuant to the Statute.
In 2002, the Netherlands adopted the ICC Implementation Act in order to implement the 1998 ICC Statute in relation to cooperation with and the provision of assistance to the International Criminal Court and the enforcement of its decisions.
In its judgment in the Joseph case in 2007, the Hague District Court of the Netherlands stated:
51. During the entering into force of the Act of 21 April 1994 containing provisions concerning the institution of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, Official Journal 308, effective 4 May 1994 (hereinafter: Yugoslavia Tribunal Assistance Act) the legislature realised that the existing regulations about co-operation between States then in force, were not adapted to co-operation with international tribunals and that, therefore, this legislation should be amended. In the explanatory memorandum with the bill resulting to this Act, it is noted, among others:
“In addition to this, the Statute of the Tribunal obliges States to co-operate with the Tribunal on judicial and police matters in the area of (…) the gathering of evidence (…) and the handing over of suspects to the Tribunal (Article 29 Statute). (…) Special legislation is required in order to fully meet these obligations. For example, the existing statutory provisions concerning international co-operation in criminal matters are tailored to co-operation between States and not to co-operation with an international tribunal. This concerns both the transfer as well as the so-called limited judicial assistance, and the execution of sentences pronounced by non-Dutch courts. The bill at hand aims at supplementing the existing legislation on these points.”
(Parliamentary Documents II 1993–1994, 23 542, no 3, page 2.)
52. With regard to the handing over to the Rwanda Tribunal, in the explanatory memorandum with the bill which led to the Act containing provisions relating to the establishment of the International Tribunal for Rwanda (hereinafter: Rwanda Tribunal Assistance Act) it was noted that it was necessary, with a view to this variant of international legal assistance, to introduce new regulations:
“In this respect it goes without saying that the option of international legal assistance as provided for in Article 2, subsection 1, of the bill at hand, different from the classic extradition, provides for the surrendering of a person claimed by a international body , instituted on the basis of a Resolution of the Security Council and not, such as usual, a sovereign State. This justifies its own regulation, which is provided for in this bill.”
(Parliamentary Documents II, 1995–1996, 24 818, no 3, page 2)
53. An example of supplementary regulation, as meant above, is the provision of Article 9, subsection 1, Yugoslavia Tribunal Assistance Act which also applies to the Rwanda Tribunal as pursuant to Article 2, subsection 2, Rwanda Tribunal Assistance Act. Article 9, subsection 1, Yugoslavia Tribunal Assistance Act reads as follows:
Requests by the Tribunal concerning any form of legal assistance, addressed to any organ of the judiciary or the police in the Netherlands, whether or not addressed by name, must be complied with as far as possible.
54. From the quotations in paragraphs 51, 52 and 53 follows – as is also brought forward by the Public Prosecution Service – that already in 1993 the legislature in principle did not foresee any problem in providing (compulsory) international legal co-operation to international tribunals instead of providing it to States only. On the contrary, as the Public Prosecutor chose to characterise it during the hearing: the readiness to co-operate in criminal matters with both the Tribunals really splashed from the parliamentary documents.
55. The two Assistance Acts contain provisions concerning the handing over, the so-called limited legal assistance and the execution in the Netherlands of the Tribunal’s sentences. However, these two Acts do not contain any specific regulation on the transfer of criminal prosecution from these international tribunals by the Netherlands. Its absence can be explained by the circumstance that at the outset emphasis was put on the adjudication of the Accused by the Rwanda Tribunal and the Yugoslavia Tribunal themselves. This appears from the primacy of jurisdiction by the Tribunals as laid down in Article 8 of the Statute of the Rwanda Tribunal and Article 9 of the Statute of the Yugoslavia Tribunal respectively.
56. The primary of jurisdiction by the Rwanda Tribunal now carries less weight as a consequence of Resolutions 1503 (2003) and 1534 (2004). In these Resolutions the Rwanda Tribunal (among others) is instructed to complete its activities in 2010 at the utmost and to hand over certain categories of cases to States which have the jurisdiction and are prepared to bring this criminal cases to court. As a result of these Resolutions, the Prosecutor and the President of the Rwanda Tribunal together drafted a so-called “Completion Strategy”, in which they indicated the way in which the tribunal can implement the instruction to complete its activities. The Resolutions and the Completion Strategy did not lead, however, to amend of legislation in the Netherlands.
57. The Court notes that the Council of State [in the Netherlands] in its opinion with the bill of adaptation of the Penal Code, the Code on Criminal Procedure and a number of other Acts to the Implementation Act International Criminal Court (Parliamentary Documents II, 2001–2002, 28 099A), raised the question of whether Article 4a, subsection 1, Penal Code should be supplemented by the concept of “an international court”. This bill provides for an adaptation of Article 5 Penal Code in the view of the obligation for the Netherlands laid down in the Statute of the International Criminal Court to extend the effect of criminal legislation to criminal offences against the International Criminal Court’s administration of justice (Article 70, subsection 4 Statute). In its advice the Council of State proposed the extension of jurisdiction by way of Article 4a Penal Code and, by doing so, establishing indirect jurisdiction for the cases in which the International Criminal Court does not want to adjudicate the crimes itself, but prefers to leave the Dutch authorities with this task. Apparently, the Council of State took in account the fact that Article 4a concerns the take over of criminal proceedings from States and not from international tribunals. The legislature, however, chose for the establishment of direct jurisdiction with respect to the nature of the criminal acts mentioned above, as a consequence of which, in the subject of supplementation of Article 4a Penal Code in the sense as suggested by the Council of State, did not surface in the process of drafting. However, there are no indications suggesting serious opposition against such a supplement.
58. In this connection the Court also notes the view put forward by the Dutch government with regard to the explanation of the concept of a foreign State in the proceedings of the Rwanda Tribunal concerning the transfer of the Accused Michael [B.] to the Netherlands (Case no ICTR-2005-86-11bis). The Dutch government herein put forward its opinion that the interpretation of the concept of a “foreign State” incorporated in Article 4a Penal Code can also be interpreted as Rwanda Tribunal. In paragraph 19 of the ‘Decision on the Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands’, dated 13 April 2007 the Rwanda Tribunal’s Trial Chamber quoted the view of the Dutch government herein as follows:
The Netherlands acknowledges that the issue of accepting transfer of criminal cases from international tribunals is a recent phenomenon and is therefore unsettled in its law.
Nonetheless, it emphasises the importance placed on co-operation with the ICTR and ICTY under Dutch law, and argues that “an interpretation which would exclude the ICTR from the definition of foreign state would run contrary to past and current views on the importance of co-operation with the ICTR”. As support for its position, it points to Article 2, paragraph 2 of the ICTR Implementation Law which incorporates by reference Articles 3 to 18 of the ICTY Implementation Law. (…) The Netherlands submits that it “believes it important to help to extend international case law on grave breaches of the most fundamental norms of international humanitarian law, such as genocide, crimes against humanity and war crimes”.
59. The foregoing brings the Court to the following. Granting of jurisdiction to international tribunals is a recent development of law in which – except for the period directly following World War II – the exclusive right to adjudicate these crimes by States has given way to concurrent jurisdiction has given way to concurrent jurisdiction, where the primacy on prosecution, dependent of the characteristics of the international tribunals, lies within either the state or the international tribunal. The Dutch authorities co-operate with these international tribunals and provide for various forms of co-operation in criminal matters. At the beginning the Rwanda Tribunal led emphasis on the adjudication of cases by the Tribunal itself, this is not longer the case however as a consequence of the decision taken by the Security Council to complete the Rwanda Tribunal’s activities within a relative short period of time. The UN Member-States are now called upon to take over the trial of the Accused from the Tribunal. The fact that Article 4a Penal Code only mentions foreign States from which prosecution can be taken over does not prevent, according to the Court, that the Netherlands agrees to such requests from the Tribunal. For several years the Netherlands has been co-operating with the Tribunals as if they were foreign States. A reasonable explanation of the law brings with it that the Rwanda Tribunal for the application of the issue stated in Article 4a Penal Code can be equated with a ‘foreign State’. This follows logically from the legislature’s continuous line and does not require a further political choice of legal schemes.
70. The Public Prosecutor also noted the judgments of this Court of 16 October 2001 (Dutch Case Law 2002, 20) and 14 February 2002. She attached the conclusion to these judgments, that co-operation with the request of the Rwanda Tribunal to the Dutch authorities to take over the prosecution of an Accused is a legal obligation for the Netherlands, which, following the provisions contained in Article 25 and 103 of the Charter, takes precedence over other national and international obligations and regulations.
71. In the first place, the Court notes that unlike the International Criminal Court (set up by the Statute of Rome concerning the International Criminal Court dated 17 July 1998, Bulletin of Treaties 2000, 120 and effective for the Netherlands on 1July 2002), both Tribunals are not set up by multilateral treaties but by Resolutions of the Security Council, attached as Appendix the Statute of the Tribunal concerned (see in paragraph 47 above). The Member-States of the United Nations, on the basis of Article 25 Charter, must accept and execute the decisions of the Security Council based on the Charter and, therefore, are bound to these Resolutions adopted by the Security Council. The Security Council in these Resolutions stated that all Member States, as provided for in both Statutes, must co-operate with both Tribunals and their bodies and adapt their national legislation to this effect. The various forms of legal assistance which are in the competence of Member States or to which they are obliged can be read in the Statute.
72. On these grounds the Court concludes that the Charter in connection with the Statute [of the Rwanda Tribunal] can be considered as a treaty under which international legal assistance can be provided.
73. However, the Court continues – as the Public Prosecutor has done – that there is no explicit arrangement in the Statute creating an obligation or a power for the Netherlands to take over – on the request of the Rwanda Tribunal – criminal proceedings of the Tribunal.
74. In support of her arguments, the Public Prosecutor brought forward, such as mentioned above, Article 28 of the Statute. This Article reads as follows:
Co-operation and Judicial Assistance
1. States shall co-operate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to:
(a) The identification and location of persons;
(b) The taking of testimony and the production of evidence;
(c) The service of documents;
(d) The arrest or detention of persons;
(e) The surrender or the transfer of the accused to the International Tribunal for Rwanda.
75. According to the Court, this article [of the Statute of the Rwanda Tribunal] provides for a general obligation to co-operate (“shall co-operate”) by the Member States with the Rwanda Tribunal (subsection 1) and a specific obligation to co-operate (“shall comply”) in a number of areas described in further detail (sub section 2) in order to allow investigation and adjudication by the Rwanda Tribunal. The Court as well as the Public Prosecutor concludes that this article does not contain an obligation to transfer criminal proceedings. The Court, contrary to the Public Prosecutor’s view, does not understand from this article that the Member States have the competence to take over criminal proceedings of the Rwanda Tribunal. The article’s object and choice of words are contrary to this interpretation. As considered above, the Rwanda Tribunal has the primacy to adjudicate international criminal offences committed in the period from 1 January 1994 up to and including 31 December 1994 in Rwanda (and neighbouring countries). The Resolution by which the Tribunal was established, obliges the Member States, where possible, to assist the Tribunal in the execution of its charge. Article 28 of the Statute of the Rwanda Tribunal is an elaboration of this. This article concerns the legal assistance rendered by States to the Rwanda Tribunal with a view to adjudication by the Rwanda Tribunal, not with a view to the competence of the Member State to take over trial from the Rwanda Tribunal. The Court dismisses the plea of the Public Prosecutor concerning this article.
77. The Court determines that the handing over to the Tribunals is explicitly arranged as a compulsory form of co-operation between the Tribunals and the Member States. Therefore it is understandable that the legislature determined that Chapter VII of the Charter – as read in conjunction with (these stipulations of) the Statutes, as is understood by the Court – may serve as the authority required. As mentioned above, on the transfer of criminal prosecution, however, there is absolutely no arrangement in the Statute of both Tribunals. The Public Prosecutor’s plea on what the legislature considered with respect to the authority concerning handing over, therefore, cannot support the argument defended by her that the Charter and the Statute of the Rwanda Tribunal offer a legal basis for the take over of prosecution, which is not a compulsory form of co-operation.
78. Even more so, from the parliamentary history of the Implementation Act Yugoslavia Tribunal, it can be deduced that the legislature does not consider the Charter and the Statute as a legal basis for non-compulsory co-operation between the Tribunals and the Netherlands in cases where Dutch law requires a treaty. In Article 26 of the Statute of the Rwanda Tribunal and Article 27 of the Statute of the Yugoslavia Tribunal there are regulations regarding the execution by the Member States of the sentences pronounced by the Tribunals, which is a not-compulsory form of co-operation between the Tribunals and the Member States. Execution in the Netherlands of foreign criminal judgments is regulated in the Act on the transfer of enforcement of criminal judgments of 10 September 1986, Official Journal 1986, 464, effective in phases (hereinafter Act on the transfer of enforcement of judgments). Article 2 of this Act reads as follows:
Enforcement in the Netherlands of foreign judgments shall only take place pursuant to a treaty.
Therefore the legislature here stated as a condition that enforcement can only take place pursuant to a treaty as is the case in the transfer of prosecution (Article 4a Penal Code). The legislature realised this in the conclusion of the Implementation Act of the Yugoslavia Tribunal. This act contains an arrangement with respect to the enforcement by the Netherlands of the sentences by this tribunal (Articles 11 up to and including 14). Under the stipulations of the Act of enforcement of judgments, which are declared to be equally applicable, does not belong the provision contained in Article 2 quoted above. In other words, the authority on the basis of a treaty is explicitly declared non-applicable by the legislature. Enforcement of foreign sentences by the Netherlands therefore is only possible pursuant to a treaty or a stipulation in a special Act, such as the Implement Act Yugoslavia Tribunal. The same goes for the take over of prosecution by the Netherlands. Indeed, the transfer of prosecution and the execution of foreign sentences are not compulsory methods of co-operation and concerning both methods of co-operation, Dutch legislation sets as a condition that there must be a treaty governing this co-operation.
In 1994, during a debate in the Dutch Parliament concerning the establishment of the International Criminal Tribunal for the former Yugoslavia, the point was made that a State, as regards its cooperation with the Tribunal, may not raise the objection of statutes of limitation arising from its national legal system in order to refuse such cooperation. It was further stated that violations of the laws and customs of war as mentioned in Article 8 of the Criminal Law in Wartime Act as amended of the Netherlands were not subject to statutes of limitation.
In 1997, when a question was raised by a member of the Dutch Parliament concerning the measures taken in order to arrest suspected war criminals, the Government of the Netherlands replied that it was in favour of issuing a list of information and photographs of persons indicted by the International Criminal Tribunal for the former Yugoslavia to the soldiers of the SFOR mission to ensure that persons suspected of war crimes were brought to trial before the Tribunal. It also stated that the Government of the Netherlands had proposed this course of action to NATO on several occasions.
In 1997, during plenary discussions in the UN General Assembly on a report of the International Criminal Tribunal for the former Yugoslavia (ICTY), the Netherlands stated:
The [ICTY] is justified in asking Member States to put more of an effort into arresting indicted war criminals and bringing them before the Tribunal … We urge all those involved, directly or indirectly, to live up to their obligations and cooperate in advancing the course of justice.
We also appeal to all Member States to seek ways and means in the realm of their domestic jurisdiction of assisting the Tribunal in every way possible … This can be done, for instance, by actively tracing and handing over indicted persons to the Tribunal, by instituting proceedings against alleged war criminals in their domestic courts, and by allowing war criminals convicted by the Tribunal to be imprisoned within their borders.
… We wish to remind all States of their obligations, political and legal, under international law and of their duty to cooperate with the Tribunal under the terms of its Statute. We commend the Tribunal for drawing up model arrangements to this particular end and again urge Member States to seek early the conclusion and implementation of such arrangements.