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The Bouterse case*

Published online by Cambridge University Press:  07 July 2009

L. Zegveld
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Case Law Notes
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Netherlands Yearbook of International Law , Volume 32 , December 2001 , pp. 97 - 118
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Copyright © T.M.C. Asser Press 2001

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References

1. The judgment was rendered in cassation in the interest of the law as provided for in Art. 456 Dutch Code of Criminal Procedure. The head of the Public Prosecution's Department requested the Prosecutor General to the Supreme Court to requisition cassation in the interest of the law. Such requests concern an extraordinary remedy, which is resorted to in exceptional cases only. For an English translation of the judgement see infra pp. 282–296.

2. For an English translation of the judgment see infra pp. 266–282. The Court of Appeal upheld the complaint made by R. Wijngaarde and R.A. Hoost under Art. 12 of the Dutch Code of Criminal Procedure against the decision not to prosecute Bouterse. For the text of Art. 12, see infra (n. 61 to the decision of the Court of Appeal). Decisions given in the procedure laid down in an Art. 12 of the Code of Procedural Law are not appealable. The Supreme Court reversed, in the interest of the law, the decision of the Court of Appeal. Formally, the cassation should not have affected the decision of the Court of Appeal, leaving the latter's order to initiate prosecution against Bouterse intact. However, as the Supreme Court has denied Dutch jurisdiction to try Bouterse, the public prosecutor was not prepared to follow the order of the Court of Appeal, as there would have been no judge to examine the case. Accordingly, pursuant to the Supreme Court's judgment, the public prosecutor has requested the closure of the preliminary judicial examination into the offences concerned ordered by the Court of Appeal, which has been complied with.

3. The public prosecutor did bring a test case against a Yugoslav refugee, suspected of having committed war crimes. This resulted in a decision of the Supreme Court confirming universal jurisdiction of Dutch courts over war crimes, Decision of 11 November 1997, NJ (1998) No. 463 and 30 NYIL (1999) p. 315; see van Elst, R., ‘De Zaak Darco Knezević: Rechtsmacht over Joegoslavische en Andere Buitenlandse Oorlogsmisdadigers’ [The Darco Knezević case: legal power over Yugoslavia and other foreign war criminals], 73 NJB (1998) pp. 1587–1593.Google Scholar

4. Act of 29 September 1988, Stb.(1988) No. 478, to implement the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Act entered into force on 20 January 1989.

5. Dugard referred, inter alia, to practice of the monitoring bodies attached to international and regional human rights conventions, resolutions of the UN General Assembly and the Pinochet decision of the UK House of Lords, Report of 7 July 2000, available on www.rechtspraak.nl, paras. 5.3.1 - 5.3.2.

6. See for example, Yugoslavia Tribunal, Tadić case, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, para. 99 (2 October 1995). On this matter see Meron, T., ‘Is international law moving towards criminalization?’, 9 EJIL (1998) at pp. 18, 28.CrossRefGoogle Scholar

7. Yugoslavia Tribunal: Prosecutor v. Anto Furundzija, Case No IT-95–17/1-T, para. 140 (10 December 1998); Tadić case, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, para. 134 (2 October 1995); Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić, Ésad Landzo, Case No. IT-96–21-T, para. 308 (16 November 1998); Rwanda Tribunal: Prosecutor v. Akayesu, Case No. ICTR-96–4-T, paras. 613–615 (2 September 1998).

8. The reference in Art. 1 of the Statute that the Court ‘shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute’, may suggest only a jurisdictional character of the crimes listed in the Statute. Art. 22 of the Statute, on the other hand, requires that persons can only be held criminally responsible under the Statute when the conduct concerned at the time it took place, constituted a crime within the jurisdiction of the Court. This nullum crimen sine lege rule indicates that the norms in the Statute are not only jurisdictional but also substantive in nature, see Fischer, H., ‘The International Criminal Court: A Critical Review of the Results of the Rome Conference’, pp. 3–5Google Scholar (Paper delivered at the Symposium in Honour of Judge Antonio Cassese at the Occasion of the Award of an Honorary Doctorate by Erasmus University Rotterdam, Rotterdam, 5 November 1998) (on file with author).

9. Art. 94 Constitution reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of decisions by international institutions that are binding on all persons.’

10. Para. 8.2. Prosecutor General Keizer, in his requisition for cassation in the interest of the law, has taken the same position, Requisition of 8 May 2001, see particularly para. 40, LJN No. AB1471. Similarly, the Minister of Justice argued that rules on punishability stipulated in treaties have no direct effect, Aanh. Hand. II (2000–2001) 2073–2074 (Hand. 995, 28 March 2001).

11. Para. 4.5. On this issue see Ferdinandusse, W.N., ‘Verdragsrechtelijke strafbaarstellingen in de Nederlandse rechtsorde’ [Legal status of treaties concerning criminal law rules in the Dutch legal order], 9 RM Themis (2001) pp. 275–281.Google Scholar

12. Para. 6.3.

13. Court of Appeals, Ontario 29 April 1992, 98 ILR No. 524, 574–575 per Tarnopolsky; High Court of Justice 10 July 1989, 82 ILR No. 424, 432–434.

14. See also van Elst, R., ‘Universele rechtsmacht over foltering: Bouterse en de decembermoorden’ [Universal application of the law over torture: Bouterse and the December killings], NJCM-Bull. (2002) No. 3, pp. 211–212.Google Scholar

15. It was the Court of Appeal's recourse to the notion of retrospective effect of the law which was strongly opposed to by the public prosecutor, persuading him to request the Prosecutor General to the Supreme Court to requisition cassation in the interest of the law.

16. Also the House of Lords, in the Pinochet case, rejected retroactive or retrospective application of the law of the United Kingdom criminalizing torture so as to make torture wherever committed world wide criminal and triable in the United Kingdom, [1999] 2 WLR Nos. 827, 877 B-D per Lord Hope of Craighead, 24 March 1999 Reg. v. Bow Street Metropolitan Stipendiary Magistrate and others Ex parte Pinochet Ugarte (No. 3).

17. See also Ferdinandusse, W.N., Kleffner, J.K. and Nollkaemper, P.A, ‘Origineel of reproductie – Internationale strafbaarstellingen in de Nederlandse rechtsorde’ [Original or copy – international criminal law in the Dutch legal order], 77 NJB (2002) pp. 341–349.Google Scholar

18. Emphasis added.

19. ECHR judgment of 22 March 2001.

20. Idem paras. 105–106.

21. Cleiren, C.P.M., Nijboer, J.F., Strafrecht Tekst en Commentaar, [The criminal law text and commentary] (Deventer, Kluwer 2000) Art. 1, annotation 6Google Scholar; compare also Harris, D.J., O'Boyle, M., Warbrick, C., Law of the European Convention on Human Rights (London, Butterworths 1995) at pp. 281, 282Google Scholar on the European equivalent to Art. 15(2) ICCPR.

22. See on the relation between Art. 15 ICCPR and Art. 7 ECHR, der Wilt, H. van, MRT (2002) No. 2, pp. 49, 50.Google Scholar

23. Supreme Court, para. 6.2.

24. Arts. 2–8 of the Dutch Criminal Code, which rules provide the basis of jurisdiction.

25. The Court of Appeal endorsed the views of Prof. Dugard, to the effect that if the Dutch courts were to give a retrospective interpretation to the 1988 Torture Convention Implementation Act in prosecuting and trying Bouterse on the basis of universal jurisdiction it would not violate Art. 15 of the ICCPR, para. 6.4.

26. Para. 6.1.

27. Para. 6.4.

28. See Buruma, Y., ‘Decembermoorden’ [The December killings], 51 AA (2002) p. 103.Google Scholar

29. Art. 1 Code of Criminal Procedure reads: ‘Strafvordering heeft alleen plaats op de wijze bij de wet voorzien’, [Criminal proceedings will only take place on the basis of the statutory act].

30. Decision of the Amsterdam Court of Appeal of 20 November 2000, para 6.3. See also Corstens, G.J.M., Het Nederlandse strafprocesrecht, 2nd edn. (Arnhem, Gouda Quint 1995) p. 30Google Scholar; Cleiren et al., op cit. n. 21, Art. 1, annotation 7; Hart, A.C.'t, Het nulla poenabeginsel [The nulla poena principle], in Grondrechten [Basic laws] Jeukens bundel (Nijmegen, AALibri 1982) p. 338Google Scholar; van Dorst, A.J.A., De verjaring van het recht tot strafvordering [The prescription of the law to criminal proceedings], (Arnhem, Gouda Quint 1985) p. 104Google Scholar; Pompe, W.P.J., Handboek van het Nederlandse Strafrecht [Handbook on Dutch criminal law], 5th edn. (Zwolle, Tjeenk Willink 1959) p. 61Google Scholar; de Hullu, J., Materieel Strafrecht [Substantive criminal law] (Deventer, Gouda Quint 2000) p. 95Google Scholar. But see Knigge, G., Verandering van Wetgeving [Changes in legislation] (Arnhem, Gouda Quint 1984) p. 241Google Scholar; and Strijards, G.A.M. ‘Nederlands dualisme en zijn strafmacht’ [Dutch dualism and its criminal law jurisdiction], 75 NJB (2000) at pp. 2116–2118.Google Scholar

31. Ballin, E.M.H. Hirsch, ‘De zaak Pinochet’ [The Pinochet case], 49 AA (2000) at p. 488.Google Scholar

32. See for references to the relevant jurisprudence of the Nuremberg and Tokyo Tribunals, Pangalangan, R.C., ‘Commentary on Article 24’, in Triffterer, O., ed., Commentary on the Rome Statute of the ICC (Baden Baden, Nomos 1999) at pp. 468–469Google Scholar, annotation 3–5, fnn. 8–13 and accompanying text.

33. Ibid., at pp. 469–470, notes 7–8.

34. Explanatory Memorandum to the Act sanctioning the Rome Statute of the International Criminal Court of 1998, Lower House, 27 484, No. 3, p. 28.

35. Swart, A.H.J. and Klip, A.H., eds., International criminal law in the Netherlands (Freiburg, Edition inscrim 1997) at p. 92Google Scholar. But see J.J.E. Schutte: ‘It is generally recognized in international law that extradition treaties have so-called exclusive effect, that is to say that obligations to extradite are accepted at the date of entry into force of an extradition treaty with respect to offences committed before and after that date. It is however not acceptable to establish a new principle of jurisdiction or to exercise such jurisdiction retroactively. In my opinion provisions on jurisdiction belong to the domain of substantive criminal law, since they determine the punishability and prosecutability of offenders, so that giving a retroactive effect to those provisions would violate the principle nulla poena sine praevia lege. So if an obligation pertaining aut dedere might be accepted from the moment of entry into force of the convention for a particular contracting party, the obligation pertaining to aut judicare can only be assumed over offences, in respect of which new jurisdiction had to be established, in so far as they are committed after the entry into force of the legislation implementing this particular treaty provision,’ Schutte, J.J.E., ‘Enforcement measures in international criminal law’, 52 Revue Internationale de Droit Pénal (1981) p. 451.Google Scholar

36. It should be noted, however, that the Explanatory Memorandum to the Act suggests that the legislator had in mind enforcement of jurisdiction in particular with regard to suspects who are present in the Netherlands, Explanatory, Memorandum to the Dutch Torture Convention Implementation Act, Lower House, 1986–1987, 20 042, No. 3, p. 5, in 19 NYIL (1988) at p. 432.

37. Supra n. 36.

38. Para. 8.3.1.

39. Belgium passed the arrest warrant to Interpol on 11 April 2000.

40. Judge Guillaume summarized his opinion on universal jurisdiction as provided for in the Belgium law as follows: ‘Les Etats exercent avant tout leur compétence juridictionnelle pénale sur leur territoire. Dans le droit international classique, ils ne peuvent normalement connaître d'une infraction commise a l'étranger que si le delinquant ou, à la rigueur, la victime a lauer nationalité ou si le crime porte atteinte à leur sûreté intérieure ou extérieure. Ils le peuvent en outre en case de piraterie et dans les hypothèses de compétence universelle subsidiaire prévues par diverses conventions si l'auteur de l'infraction se trouve sur leur territoire. Mais en dehors de ces cas, le droit international n'admet pas la compétence universelle; il n'admet encore moins la compétence universelle par défaut.’

41. The Dutch legislative proposal International Crimes Act (Wet Internationale Misdrijven), implementing the Statute of the International Criminal Court, distinguishes between primary and secondary universal jurisdiction, the latter limiting jurisdiction to cases where the suspect is present on Dutch territory (Art. 2).

42. Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, paras. 6, 19.

43. Para. 53 (emphasis added).

44. In the Pinochet case, Lord Millett declared in respect of the exercise of universal jurisdiction that: ‘the limiting factor that present the exercise of extraterritorial criminal jurisdiction from amounting to an unwarranted interference with the internal affairs of another state, is that, for the trial to be fully effective, the accused must be present in the forum state’. Judicial decisions also stress the requirement of presence for the exercise of universal jurisdiction. In the Furundzija case the Yugoslavia Tribunal stated that “every state is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction, Yugoslavia Tribunal, Prosecutor v. Furundzija, case No. IT-95–17/1-T; 38 ILM (1999) paras. 134–142.

45. The exercise of universal jurisdiction does not necessarily have to lead to trial in absentia, as the Netherlands-could request the extradition of the suspect.

46. Para 8.5.

47. Para. 8.3

48. Para. 4.2. of the judgment of the Amsterdam Court of Appeal.

49. Art. 27 ICC Statute provides: ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person.’ Similar rules are laid down in Art. 7(2) Yugoslavia Tribunal Statute and in Art. 6(2) Rwanda Tribunal Statute.

50. Para. 53.

51. Para. 55. In para. 61, the International Court of Justice stipulates: ‘Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.’

52. Para. 53.

53. In the Pinochet case, the House of Lords found that former heads of state cannot invoke immunity for acts committed in a non-official capacity.

54. The International Court of Justice examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter. It examined the Charter of the International Military Tribunal of Nuremberg (Art. 7), the Charter of the International Military Tribunal of Tokyo (Art. 6), the Statute of the Yugoslavia Tribunal (Art. 7 para. 2) and the Statute of the Rwanda Tribunal (Art. 6 para. 2) and the Statute of the ICC (Art. 27). The Court found that these rules do not enable it to conclude that any such an exception exists in customary international law in regard to national courts, para. 58.

55. The Court has examined state practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It considered the Pinochet decision, which recognizes an exception to the immunity rule when Lord Millett stated that ‘international law cannot be supposed to have established a crime for having the character of ius cogens and at the same time to have provided an immunity which is co-extensive with the obligation it seeks to impose’, para. 58.

56. Para. 58.

57. International Court of Justice, Congo v. Belgium, case of 14 February 2002, para. 58.

58. The Dutch International Crimes Act, currently submitted to Dutch parliament as a legislative proposal, recognizes in addition to immunity of heads of state, heads of government and ministers for foreign affairs, immunitis of persons that flow from international customary law (Art. 16).

59. Art. 6(c) of the Nuremberg Charter criminalizes: ‘crimes against humanity: namely murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated’, Charter of the Nuremberg Tribunal, reprinted in Schindler, D. and Toman, J., Laws of Armed Conflicts (Geneva, Henri Dunant Institute 1981) at p. 826Google Scholar (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis).

60. GA Resolution 95(1) of 11 December 1946: ‘The General Assembly … affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.’

61. But see Van Elst, loc.cit. n. 14, at p. 224.

62. Amsterdam Court of Appeal, decision of 25 April 2002, No. R 01/094/12 Sv, para. 5.5. The complaint was made under Art. 12 of the Code of Criminal Procedure.

63. Even though the 1998 ICC Statute does not require the establishment of universal jurisdiction over crimes laid down in the Statute.

64. Para. 4.2.

65. In its decision of 31 October 2000 ex Art. 4 Surinam Code of Criminal Procedure, the Surinam Court of Justice ordered the prosecution of Bouterse for the December killings, see Klip, A.H., ‘Dubbele vervolging voor de Decembermoorden?’ [Double Prosecution for the December Killings?], 44 NJB (2000) pp. 2120–2121.Google Scholar