By Otto Spijkers
A few months ago, Joseph Mpambara, a man with Rwandan nationality who committed crimes in Rwanda against other Rwandan citizens, was sentenced to 20 years imprisonment by the Dutch District Court in The Hague. The original judgment was published only a few days ago, and is available on the website of the Court. An English translation of the judgment will be published sometime in the future, and will then become available on the same website.
The judgment is very lengthy, but I want to focus only on the issue of ‘universal jurisdiction.’ As the very brief summary of the facts provided just above makes clear (for more details, see the website of Trial Watch), there was no particular link between the Netherlands and the perpetrator, the crimes itself, or the victims of the crime. The only basis for criminal jurisdiction was thus the principle of ‘universal jurisdiction.’
Joseph Mpambara was accused of torture, war crimes, and genocide, all committed in Rwanda against Rwandan nationals. The Dutch Court first had to see whether it had jurisdiction to hear these accusations.
Universal jurisdiction for crimes committed after 2003
It is clear that for crimes committed after 2003 the Dutch Courts do have such jurisdiction. After all, when the Rome Statute of the International Criminal Court entered into force in 2002 (the Netherlands ratified the Statute already in 2001), the Netherlands changed its domestic law to ensure that the crimes enlisted in the ICC Statute were also considered crimes in the Dutch domestic legal order. The crimes enlisted in the ICC Statute are the most serious crimes of international concern, and include genocide, crimes against humanity and war crimes. These crimes are now also prohibited according to Dutch criminal law. Changes were also made to ensure that the Dutch Courts had jurisdiction to prosecute these crimes.
Strictly speaking, the establishment of the ICC did not require the Netherlands to make these changes. However, the ICC Statute’s Preamble makes it clear that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’, and that the International Criminal Court was intended to be complementary to national criminal jurisdictions. In other words, the idea was that the ICC would exercise its jurisdiction only if States were ‘unable or unwilling’ to do so themselves, and the Netherlands did not want to be labeled ‘unable or unwilling,’ and thus changed its domestic law so that the Dutch Courts have jurisdiction to deal with the crimes enlisted in the Rome Statute, also when committed by anyone anywhere against anyone else.
The only restriction to the exercise of universal jurisdiction for genocide, war crimes, and crimes against humanity by the Dutch Courts is that the accused has to be present in the Netherlands. See Article 2 of the Dutch International Crimes Act, which entered into force in October 2003. I will say more about this restriction below.
Universal jurisdiction for crimes committed before 2003
Joseph Mpambara committed his crimes before 2003, namely during the Rwandan genocide of 1994. At that time there was no International Criminal Court, and thus also no Dutch International Crimes Act. In a separate judgment, issued on 24 July 2007, the Dutch District Court of The Hague first had to consider whether the old law, i.e. the law as it existed before the International Crimes Act entered into force, allowed the Dutch Courts to exercise universal jurisdiction for genocide. This judgment focused on genocide alone, and had no consequences for the Court’s jurisdiction in relation to the other accusations, i.e. torture and war crimes.
The old law on the Dutch Court’s jurisdiction for genocide was to be found in the old Dutch Crimes in Wartime Act, and the Implementation Act of the Genocide Treaty, which implemented the Convention on the Prevention and Punishment of the Crime of Genocide. The latter act is no longer in force, and the former is changed considerably. According to this old law, the Netherlands did need to have a link with either the perpetrator, the crime, and/or the victim. Since there was no such link in this particular case, Joseph Mpambara could not be prosecuted in the Netherlands for committing genocide. The fact that the case was referred to the Dutch Courts by the International Criminal Tribunal for Rwanda did not change that. This decision was appealed, but the Dutch Supreme Court eventually affirmed the District Court of The Hague’s decision. See the Supreme Court Judgment of 21 October 2008, which is available at Rechtspraak.nl.
This still leaves the question of jurisdiction over the crimes of torture and war crimes. Contrary to the crime of genocide, the old law did allow the Dutch Courts to exercise universal jurisdiction over these remaining two categories of crimes. Article 3(1) of the old Crimes in Wartime Act established such jurisdiction over war crimes, as the Dutch Supreme Court had already affirmed in a judgment of 8 July 2008. That case was about the former Director of the National Security Service of Afghanistan who was accused of committing war crimes in Afghanistan during the Soviet war in Afghanistan in the 1980’s.
Now that we have looked at genocide and war crimes, all that remains is torture. Article 5 of the Implementation Act of the Torture Convention, which implemented the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, established universal jurisdiction over torture, with the one restriction that the accused had to be in the Netherlands at the time of his arrest. This was affirmed by the Dutch Supreme Court in a judgment of 18 September 2001. That case was about Desi Bouterse, who was accused of the torture and execution of fifteen people on the night of 8 December 1982 in Fort Zeelandia, Paramaribo (Suriname). These executions are known as the ‘December Murders.’ Since Suriname had become independent from the Netherlands already in 1975, and since neither the perpetrator nor the victims had the Dutch nationality at the times the crimes were committed, the Netherlands had no jurisdictional link. Nonetheless, the Dutch Supreme Court believed that the Dutch Courts could exercise universal jurisdiction, provided that the accused was in the Netherlands. Unfortunately, this was not the case for Desi Bouterse.
We can conclude that, based on the old law, Joseph Mpambara could be prosecuted for torture and war crimes, but not for genocide. He was, in fact, sentenced to 20 years imprisonment, but only for torture. He could not be convicted for war crimes because he was a civilian at the time, and because his crimes had little to do with the ‘war’ between the Rwandan Armed Forces and the Rwandan Patriotic Front. This ‘war’ took place simultaneously with the Rwandan genocide, in which many civilians also participated.
Criticism of the old Dutch law: why establish universal jurisdiction for torture and war crimes but not for genocide?
I do not know why, in the past, the Netherlands established universal jurisdiction for torture and war crimes, but not for genocide. That does not seem to make much sense, since genocide is considered to be, as the ICTR Trial Chamber put it, ‘the crime of crimes’ (see para. 16 of Kambanda Trial Judgment.) In other words, genocide is considered to be the worst thing a person can do to his fellow human beings, and it is generally believed that the seriousness of the crime is the basis for establishing universal jurisdiction. It is thus extremely unfortunate that the Dutch Court was prohibited from looking at the accusations of genocide, but was entitled, based purely on the seriousness and gravity of the allegations, to look at the accusations of torture and war crimes.
In any case, this distinction no longer exists. According to the Dutch International Crimes Act which entered into force in 2003, the Dutch Courts have ‘universal jurisdiction’ over genocide, torture and war crimes. The same is true for crimes against humanity, which we have not mentioned thus far.
A final word on the one remaining restriction on the exercise of universal jurisdiction by the Dutch Courts
It is interesting, finally, to mention briefly the reason for maintaining the one restriction on the exercise of universal jurisdiction for genocide, crimes against humanity and war crimes by the Dutch Courts. That is the restriction that the accused has to be in the Netherlands at the time of his arrest. According to the Explanatory Memorandum to the Dutch International Crimes Act,* the Netherlands Government agrees with the view expressed by Judges Higgins, Kooijmans and Buergenthal of the International Court of Justice that international law does not oblige States to impose this restriction on the exercise of universal jurisdiction.
Nonetheless, the Dutch Government believes it is better to impose this restriction anyways, since the unrestricted exercise of universal jurisdiction would lead to conflicts of jurisdiction and would thus not help prevent these most serious crimes of concern to the international community as a whole. I tend to agree with this decision. If all States in the world were to exercise their right to universal jurisdiction, then a single individual could become the object of almost 200 separate criminal cases, one in each of the world’s sovereign States.
*The Explanatory Memorandum to the Dutch International Crimes Act is available at Parlando. You can use the search engine that is available on that website. Click ‘zoek uitgebreid,’ and then fill in the following: at ‘nummer’ you type in ‘28337’, and at ‘volgnummer’ you type in ‘3’.