Prosecution of Dutch Syria-fighters by courts in the Netherlands
Heleen Manschot Master thesis
University of Amsterdam, July 31, 2015 Supervisor; dhr. Prof. mr. dr. H.G. van der Wilt
Main question:
To what extent can courts in the Netherlands prosecute Dutch citizens for the commission of war crimes as members of non-state armed groups in Syria.
TABLE OF CONTENTS
I. Introduction 3
- Scope of the research 4
- Sources and research questions 5
II. Classification 7
- Background 8
- International crimes committed in Syria 9
- Existence of an armed conflict 10
- Intervention 12
- Conclusion 13
- Consequences 15
III. The elements of war crimes 17
- The status of protected persons 17
- Nexus with an armed conflict 18
- International courts 19
- Dutch courts 21
- The ‘Elements of Crimes’ 21
IV. Prosecution by the Dutch Court 23
- The International Crimes Act 23
- Jurisdiction 24
V. Conclusion 26
I. INTRODUCTION
In 2011, a series of anti-government protests, uprisings and armed rebellions spread across the Middle East. The amount of civilians participating in the demonstrations increased fast, as only a spark was needed to inflame the displeased and suppressed masses as a result of unemployment and inequality. The harsh violence used by the autocratic regimes in attempts to check the uprisings only resulted in stronger resistance and international criticism. In Western regions, the spillover of the protests to other Arab countries having despotic leaders became popularly known as the ‘Arab Spring’.
The resulting regime changes in Tunisia, Egypt and Libya caused expectations to also rise in Syria. Hopes were that the feared Bashar al-Assad too would either allow democratic reforms or yield to the opposition, if necessary with foreign support. However, the diversity in the Syrian population and its key-role in the complex arrangement of loyalties, animosities and diverging allegiances between states in the Middle East make a transformation in its government far more complicated. Four years later, Syria’s largest cities are in ruins, a total of 215.000 people have lost their lives, 6.5 million civilians are displaced and almost 4 million registered refugees have been counted.1 A grave concern is the staggering amount of civilian casualties; the conflict now involves armed groups that display merciless acts of violence and show little respect for humanitarian principles such as the distinction between civilians and fighters.2
As these atrocities find their ways to Western media, more frequent calls for justice are heard from foreign politicians as well as academics. Several options for the finding of justice have been proposed. One option would be for the International Criminal Court (hereafter ICC) to prosecute violations of international humanitarian law i.e. the law of armed conflict. Syria however, has not signed the Rome Statute and does not accept jurisdiction of the Court. The only option left for
prosecution by the ICC is a referral by the United Nations Security Council stating that the violence in Syria composes a threat to international peace and security.3 For such a resolution to pass through the Security Council however requires unanimity. Despite support from the prosecutor of the ICC Fatou Bensouda, on 22 May 2014 the referral to the ICC was vetoed by permanent members Russia and China, just as three previous resolutions aiming at condemning the violence. Due to the deadlock in the Council, at this juncture a referral seems infeasible.
Another option would be the establishment of an ad-hoc tribunal similar to that created for Sierra Leone, Cambodia, Lebanon or Yugoslavia and Rwanda. Such a court however would be costly and require ample time to establish. Therefore, it is worth investigating the most achievable option at this moment; that of other states prosecuting (international) crimes committed in Syria.
Furthermore, in The Netherlands the so called ‘Syriëstrijders’ (Syria-fighters) have been the
1
http://data.unhcr.org/syrianrefugees/regional.php 2
The website iamsyria.org keeps track of the death toll of the conflict in Syria. 3
topic of hot debate. This concerns Dutch citizens traveling to Syria with the aim of participating in the conflict. Except for uncertainty about motives there is also concern about their place in the Dutch society after eventual return. Moreover, a reasonable suspicion that any Dutch citizen violated the laws and customs of war and participated in atrocities is always a reason for investigating the options of prosecution.
Scope of the research
This thesis addresses the prosecution of Dutch citizens that are suspected of having committed war crimes during the current conflict in Syria. Its purpose is to provide clarity on the complications and predict certain outcomes. Therefore, the research revolves around this, partially, hypothetical case and addresses the most important substantive features of the chosen course. Partially hypothetical since it is not improbable that these questions will in the near future indeed have to be answered in Dutch courts.
National prosecution of international crimes committed abroad is not self-evident and certain obstacles need to be overcome. In this research my focus is on substantive law, aspects such as extradition procedures and admissibility of evidence will not be overly dealt with, except for commentary that is necessary for a sufficient understanding of certain assessments.
More in particular, the main subject is the prosecution of individuals for the commission of war crimes. The extraterritorial prosecution of war crimes entails certain challenges that make it more interesting than concentrating on commission of crimes against humanity or terrorism. Moreover, the commission of war crimes seems the most suitable international crime for Dutch Syria-fighters to investigate.
An important requirement for IHL to be applicable is the existence of an armed conflict. However obvious as this may seem in the case of Syria, being an essential condition urges to legally assess the established of an armed conflict using the relevant parameters and case-law.
In order to identify the applicable law, of great importance is the identification of the conflict into either an international armed conflict (IAC) or a non-international armed conflict (NIAC). That is, a conflict involving at least two states on separate sides of the conflict or a civil war where no two states are taking up arms against each-other. Most humanitarian law provisions cover the law of international armed conflicts. The distinction between provisions covering IAC’s and NIAC’s exists in the criminalization in the Geneva Conventions as well as in the Rome Statute establishing the ICC and its transposition in Dutch law; the International Crimes Act (Wet Internationale Misdrijven).
Therefore, it is important to classify the conflict in order to decide what law to apply to the parties involved.
Furthermore, for a war crime to establish, a nexus or link between the crime and the armed conflict is required. This element of war crimes has been extensively elaborated on by international courts, domestic courts and academics of international criminal law. Therefore, the essentials of the
different interpretations will be assessed, how they have evolved and the implication they have for the Dutch court prosecuting war crimes committed in Syria.
In conclusion, a statement will be made on the feasibility of prosecution by Dutch courts of war crimes committed in Syria.
Sources
This research primarily considers the field of international criminal law (hereafter ICL) and
international humanitarian law (IHL). The sources used to conduct the investigation therefore coincide with these categories of international law. Among the first statements of the laws of war were the Hague Conventions of 1899 and 1907. Commonly referred to as ‘Hague law’, their main aim is to regulate the rights and duties of the military in armed conflict and therefore concentrate on the soldier’s standpoint.4 These consider important principles such as that of proportionality in the use of armed force and the obligation to distinguish between active combatants as military objectives and civilians who are not to be targeted. The Geneva Conventions and their additional protocols consist of obligations designed to protect victims of armed conflict; the wounded and sick, shipwrecked,
prisoners of war and civilians.5
War crimes in non-international armed conflicts are criminalized in two Geneva-law
instruments; article 3 common to the Geneva Conventions (CA3) and the 1977 additional protocol II (APII). These provisions administer only a minimum standard for treatment that is to be provided to victims of armed conflict. To further the counteraction of international atrocities the Rome Statute was drafted, providing the ICC also with jurisdiction over war crimes in non-international armed conflicts in article 8(2)(c and e). According to the principle of complementarity, the ICC will only prosecute when states themselves are unwilling or unable to. The Netherlands as a State Party interpreted this as the obligation to transpose the provisions of the Rome Statute into domestic law; the International Crimes Act (Wet Internationale Misdrijven). In addition, the Elements Of Crimes as adopted by the State Parties in article 9 of the Rome Statute are meant to assist the judges in establishing the existence of a war crime.
In addition to treaties, customary international law plays a significant role in international law in general. For the field of international criminal law however, applying customary law is problematic considering the principle of legality that requires a written law to be violated in order to prosecute an individual. From a realistic point of view however, also international criminal law evolves through the combination of general state practice and opinio juris, for instance on the elements of war crimes. A principle of treaty law is that it applies only to states having assumed its obligations by a formal act of subjection. An agreement ratified or acceded to remains res inter alios acta. Yet, the reliance on
4
Dieter Fleck, Handbook of International Humanitarian Law, Oxford University Press, 2013, p. 22 5
International Committee of the Red Cross, Treaties and States Parties to such Treaties, https://www.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp
customary law is especially important for IHL in order to ensure a minimum standard applicable in the changing ways of warfare and altering composition of the international community.6 In the Tadic case, the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia decided that the violation of customary law during a non-international armed conflict also entails individual criminal liability.7 Therefore, this research also takes into account the application of customary international law on the engagements of non-state actors in Syria.
The main concern of this thesis however is the manner in which the relevant Geneva Law has been given shape in the Rome Statute and its eventual transposition in the International Crimes Act. An important aspect of international criminal law is the principle of complementarity. This implies that domestic jurisdictions are supposed to have precedence in the prosecution of perpetrators of international crimes.8 Historically, international rules did not provide for either the objective or subjective requirements of crimes and the corresponding punishments. The therefore initially incomplete system of international criminal law implicated certain discretion for domestic courts in interpreting and executing the norms set in international law. Accordingly, the crucial point in this thesis is to predict the development of the judgment by Dutch courts and to determine which law is applicable under the circumstances of this case.
6 Robert Kolb, International Humanitarian Law, Edward Elgar Publishing, Cheltenham 2014 7
ICTY Prosecutor v. Tadic, IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 129
8
II. CLASSIFICATION OF THE CONFLICT
As previously stated, making a classification of the conflict is crucial in order to decide the applicable legal provisions. The origin of international humanitarian law can be found in the realistic view of sovereign states expecting reciprocity in regulating their conduct of warfare.9 In administering minimum standards to the behavior of their armies, hopes were that horrific sights of earlier
battlefields would belong to the past. As a consequence of both this reciprocity and sovereign states subjected to conventions serving the pacta sunt servanda principle, the primary objects of IHL were state vs. state wars i.e. international armed conflicts.
As a result, the law of international armed conflict or NIAC is rather underdeveloped and additional protocol II is rarely applied by domestic courts. Since almost all currently waged wars are internal, this could be considered a critical development. Among more practical observations, one would argue this leads to current internal conflicts displaying increasingly harsh cruelties.
The ICTY in the Tadic case performed a pioneering function in nevertheless applying the law of international armed conflict to the complicated internal armed conflict that had taken place in Yugoslavia. The different judgments of the ICTY in the Tadic case have produced a considerable amount of reasoning that has proven to be of the utmost importance for the development of international law. One aspect thus is the internationalization of a civil war.10
Some provisions in the Geneva Conventions apply exclusively in IAC. Firstly, that is the notion of combatant. An individual’s qualification as combatant has considerable consequences for his/her rights and duties. For instance, a combatant has a ‘license to kill’, which entails the lawful killing of another combatant or person taking ‘direct part in hostilities’. In addition, the second notion exclusive to IAC’s; the protection belonging to the prisoner of war status (POW) under the third Geneva Convention. In NIAC’s on the other hand, the term ‘fighters’ is used to distinguish between citizens and persons directly taking part in hostilities. This status however does nothing more than render the fighters’ killing by an opponent lawful, as opposed to providing subsequent rights. Also in internal armed conflicts, formally no belligerent occupation exists. This seems quite convincing, since neither the government nor rebel forces will consider themselves as occupiers instead of the only rightful authority. Belligerent occupation encompasses further rights and duties of the occupier designed to protect civilians, most of it is codified in Geneva Convention IV on civilians. Most significant are the consequences of classification for jurisdiction. Only in international armed conflicts are certain war crimes deemed ‘grave breaches’ of IHL. As a consequence, the aut
dedere aut judicare principle entails the obligation for the member state having captured the alleged
war criminal to literally either adjudicate or extradite the suspect. This form of universal jurisdiction
9 William A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, Fordham International Law Journal, 26 (2002)
10
ICTY Prosecutor v. Tadic, IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995
allows any state to prosecute the perpetrator regardless of its relation to the accused.11 Among war crimes in IAC’s, also crimes against humanity, genocide and torture bring about universal jurisdiction as they are considered jus cogens or obligations erga omnes i.e. affecting the international community as a whole.
As previously stated, article 3 common to all Geneva Conventions (CA3) provides the first formal legal regulation of non-international armed conflicts. Being composed of a minimum standard of behavior and treatment of protected persons the article is frequently referred to as a ‘convention in miniature’.12 No universally accepted definition of a non-international conflict exists. According to CA3 it applies to ‘armed conflicts not of an international character’; a wide definition that contains two indications. The threshold of an armed conflict will have to be applied to the situation in Syria as well as assessing the involvement of other states.
Background of the conflict
In considering the nature of the conflict it is necessary to give a short introduction to its background. The uprising began in March 2011 when the military reacted overly violent and killing protesters in Damascus, Banias and Deraa. President Bashar al-Assad vowed to crush what he called ‘terrorists’. In only half a year, hundreds of protesters were killed by governmental forces. In August 2011, the Syrian National Council is formed, the first opposition coalition aiming at a change of regime. In 2012, the Syrian National Coalition (SNC) is established of which the Syrian National Council becomes a party. In October 2011, the first UNSC resolution proposing sanctions against Syria is vetoed by Russia and China. In addition, for the first time the Syrian government accuses Al Qaeda fighters of participating in the conflict. Attacks on civilians in Damascus are simultaneously blamed on Al Qaeda and the Syrian government. Syrian security forces open fire on thousands of anti-government protesters in Hama which leads to the Arab League observer’s mission being aborted. In 2012, several attempts at diplomatic interventions have been made. For the second time, a UNSC resolution considering the situation in Syria is vetoed by Russia and China. After failing to accomplish a cease-fire, Kofi Annan resigns as special convoy of the UN. Meanwhile the violence intensifies when government forces repeatedly assault civilians in the city of Homs. In 2013, the Assad regime is accused of using chemical weapons against its own people, killing hundreds of civilians in Damascus. This dramatic event altered the international attitude towards the Syrian conflict. A resolution demanding the Syrian government to dismantle its chemical weapon arsenal is unanimously adopted by the UN Security Council and the Syrian government agrees to remove its supplies under international supervision. After this short success, UN Secretary General Ban Ki-Moon arranges peace-talks in Geneva involving government officials as well as the Syrian National
11
ICJ, Arrest Warrant Case, Democratic Republic of the Congo v. Belgium, 14 February 2002 12
Coalition. These parties however, fail to agree on the agenda and eventually, the then UN Special Envoy Lakhdar Brahimi announces his resignation.
International crimes committed in Syria
Already in 2011, the Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic with a mandate to investigate all alleged violations of
international human rights law since March 2011 in the Syrian Arab Republic. Additionally, to identify those who are responsible for violations in order to hold them accountable, the Commission also establishes the facts and circumstances of the crimes perpetrated. Therefore, the investigations of the Commission are of great value in collecting evidence of the commission of war crimes.13
Recent research of the Commission includes documentations on the use of barrel bombs and indiscriminate bombardment. These violations of IHL are on greater scale committed by government forces. Nonetheless, indiscriminate targeting and shelling occur as tactics for IS and Jabhat al-Nusra as well.14
The Commission conducted extensive research on the administration of territory by IS. The report is based on first-hand victim and witness accounts. It shows how IS extensively employs cruel tactics, including mass civilian casualties through suicide or remote detonated car bombs and the execution of fighters captured during military operations. Civilians have experienced a relentless assault on their basic freedoms. Victims and witnesses speak of corporal punishments including lashings and amputations, for offences such as smoking cigarettes or theft. In additions, the
populations are often obstructed in their access to food as well as medicines.15 These activities clearly amount to serious violations of common article 3 and the rules and customs of war.
Although Jabhat al-Nusra is said to display less cruel ways of warfare and control over territory, this group too commits acts that amount to war crimes. Initially, they mainly targeted government forces. However, many of their attacks disproportionally kill civilians as well, such as the October 2012 car bombing on a public square.16 Furthermore, kidnappings are used to acquire funds and threats to kill Lebanese soldiers that were taken hostage.17
According to the report of the Independent Commission, IS operates under responsible command and has a hierarchical structure, including a policy level. The group has established a command and control system under Abu Bakr Al-Baghdadi, who holds absolute power and is
supported by a number of entities including a military council. Al-Baghdadi enforces tight disciplines and by doing so, ensures full control of IS’s territory. In addition, despite the recruitment of thousands
13
http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/IndependentInternationalCommission.aspx 14
The use of barrel bombs and indiscriminate bombardment in Syria: the need to strengthen compliance with international humanitarian law, Statement by Mr. Paulo Sérgio Pinheiro Chair of the Independent International Commission of Inquiry on the Syrian Arab Republic
15
Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, Rule of Terror: Living under ISIS in Syria, under 20
16
Militant Group Al-Nusra Claim Suicide Bombings in Aleppo. Reuters, 4-10-2012 17
Branford, Nicholas. After Foley murder, more jihadi threats to murder hostages. The Christian Science Monitor, 24-08-2014
of Syrians to its ranks, IS still consists of a considerable amount of foreign fighters of which some probably still have the Dutch nationality.18
Existence of an armed conflict
For IHL to apply and more in particular a war crime to establish, the situation must at least amount to an armed conflict. In case of mere riots and protests international human rights law is applicable and individuals can be held criminally liable according to national law. Also in in article 8 of the Rome Statute, which constitutes penalization of war crimes in NIAC’s, in sub 2 under d and f its applicability depends on the existence of violence amounting to an armed conflict. It does not apply to ‘situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’.19
A reasonable definition of an armed conflict can be found in the judgment of the ICTY in Tadic: “[…] an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. […]” 20
The notion of ‘protracted armed violence’ and ‘organized armed groups’ has developed into two thresholds for determining the existence of an armed conflict. They have been translated as ‘intensity’ and ‘organization’. The main distinction being made is one between violence amounting to a ‘civil war’ and mere internal disturbances or riots.21
Intensity of the hostilities: Indicative factors include the gravity of attacks and their recurrence and duration. Other factors are whether parties were able to operate from a territory under their control; the displacement of a large number of people owing to the conflict and whether the conflict is subject to any relevant scrutiny or action by the UN Security Council.22
Organization of the armed group: Certain organizational requirements must be met in order to qualify as being a ‘party to the conflict’ in the wording of CA3. This could be deduced from the existence of a command structure and disciplinary rules and mechanisms within the groups, eventual control over a territory and the existence of a headquarters. Also, the ability to gain access to military equipment and thus its ability to carry out military operations indicate sufficient organization. Most importantly, when IHL confers duties on a group, obviously its organization must enable the group to fulfill these
18
http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/HRC_CRP_ISIS_14Nov2014.pdf 19 Rome Statute of the International Criminal Court, article 8 (2) (f)
20
ICTY Prosecutor v. Tadic, IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70
21
Inter-American Commission on Human Rights, Tablada case (Abella v. Argentina), 18 November 1997, paras. 155 22
ICTY Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Judgement, April 3, 2008, Case No. IT-04-84-T (elaborated in the Boskovski et al case (Trail and Appeals Judgement)
obligations.23 In a more concrete perspective, this implies that the group must have the strength to combat government troops on an equal level.24
The circumstances determining the geographical and temporal scope of IHL are less strict. In the Kunarac case, the ICTY Appeal Chamber stated that for a war crime to be committed, it is not necessary for the fighting to occur in the exact area where or at the same time when the offence has taken place.25 Also in Kordić & Čerkez, the Court stated that: “[…] All that is required is a showing that a state of armed conflict existed in the larger territory of which a given locality forms part”26 As for Syria, there is no doubt that the situation amounts to an armed conflict. Considering the tremendous death-toll, vast amount of refugees, the use of chemical weapons and the UNSC’s debates and proposals for action, the violence is well beyond mere riots or disturbances and the intensity threshold has undoubtedly been met.
For the organizational requirement it suffices to prove that at least one of the participating armed groups meets the threshold. Here, a necessary distinction must be made between conferring IHL obligations on separate organized armed groups and the classification of the conflict into a NIAC. That is, if only one group meets the organizational threshold the provisions of Common Article 3 apply to the conflict. Since the Nuremberg trials it is widely understood that in ICL, only individuals incur criminal liability when the Tribunal stated that; ‘Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International law be enforced’.27 Therefore, organized armed groups as such do not incur individual criminal liability themselves and the organizational requirement solely serves the
establishment of an armed conflict.
In casu, in Syria participating groups such as Al Nusra, the Kurdish Peshmerga forces and most importantly IS possess sufficient organization to enable them to abide by IHL rules. Their organizational qualities emanate from their possession of large quantities of military equipment, a fair amount of hierarchy and their capacity to administer territory under their de facto occupation.28 In addition to CA3, additional protocol II (APII) is applicable to non-state armed conflicts. Although the additional protocols were signed with the aim of extending the rules applicable on internal armed conflicts, its scope is somewhat smaller since in order to apply, the non-state actor must actually control territory. This means the armed group must be ‘state-like’, even without sovereign
23
Prosecutor v. Limaj (IT-03-66-T), 30 November 2005, paras 94–129 24
Van der Wilt & Braber, The Case for Inclusion of Terrorism in the Jurisdiction of the International Criminal Court, Amsterdam Law School Legal Studies Research Paper No. 2014-26, p. 9
25
Judgement, Kunarac and others (IT-96-23 & IT-96-23/1-A), Appeals Chamber, 12 June 2002, par 58. 26Prosecutor v. Kordić & Čerkez, Judgment, case No. IT-95-14/2-T, 26 February 2001, par. 27.
27 Judgment of the International Military Tribunal, in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, London, 1950, p. 447
28
Bill Roggio, Al Nusrah Front imposes sharia in eastern Syrian town
powers or recognition by other states or international organizations.29 Treaties however, such as the additional protocols, apply only to the states that have ratified them. Syria then is not a state party to additional protocol II and therefore its rules do not apply.30 This does not mean that similar rules might not apply when considered customary law. The International Committee of the Red Cross has assessed and published a study on the existing rules of customary international humanitarian law.31
The establishment of the existence of an armed conflict in Syria makes Common Article 3 and article 8 sub 2 under c and e applicable to the conflict on that point. Classification of the conflict as a NIAC continues with assessing the parties to the conflict and whether any internationalizing events occur.
Intervention
In September 2014, a multinational campaign initiated against Islamist extremist militant groups in Syria. The coalition taking action in Syria is of a different composition than the states that are intervening in Iraq. The main reason for this difference is the mandate under international law to use force. Under chapter VII of the UN Charter there are only three options for states to legally use force on the territory of another state, namely for reasons of self-defense, with a UNSC resolution
determining a threat to international peace and security or when the relevant state in fact requests foreign intervention on its behalf.32 The government of Iraq has invited the coalition to aid in their battle against IS.33 The Syrian government on the other hand, although the bombardments of the coalition are of great advantage to Assad’s regime, made sure not to invite or request any foreign military presence. Nor was permission by the Syrian authorities sought by the U.S. in preparation for their intervention.34 The foregoing is the reason the Dutch army joins the fighting in Iraq with their air force, and is not part of the coalition using force on Syrian territory.
Both missions however, are led by the United States, as U.S. president Obama stated on 10 September 2014; ‘I will not hesitate to take action against ISIL in Syria, as well as in Iraq.’ Obama clarifies the use of force is meant against terrorists that threaten the United States. The coalition launching airstrikes in Syria consists of soldiers from the United States, Bahrein, Jordan, Qatar, Saudi Arabia, the United Arab Emirates and Morocco. Already since 2013, U.S. officials have been training and arming fighters opposing the Assad regime.35
29
William A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, Fordham International Law Journal, 26 (2002)
30 https://www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=SY 31
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, 2 volumes, Volume I. Rules, Volume II. Practice (2 Parts), Cambridge University Press, 2005
32
UN Charter, Chaper VII; Action with respect to threats to the peace, breaches of the peace, and acts of aggression 33
US Department of Defense: http://www.defense.gov/news/newsarticle.aspx?id=123542
34 http://www.wsj.com/articles/u-s-military-prepares-for-surveillance-flights-over-syria-1409005925
35
Julian E. Barnes and Adam Entous, U.S. to Give Some Syria Rebels Ability to Call Airstrikes, Wall Street Journal, 17 February 2015
Conclusion
Having taken account of the background and current status of the situation, it is now possible to consider its classification. Since the conflict started as Syrian civilians demonstrating against their government, its starting point is the notion of a civil war. An internal armed conflict has pre-eminently as a qualification the participation of only one government. Under certain circumstances it is possible for such a NIAC to internationalize.
The basic way for internationalization is through a third state intervening directly with its armed forces. Beside this, an indirect participation by a third state might also alter the civil war into an IAC. In order to internationalize however, the indirectly participating state must exercise sufficient control over the operation for it must qualify as a party to the conflict.36
This control over the operation is a controversial aspect. In the Nicaragua case the International Court of Justice (ICJ) determined the threshold to be ‘effective control’, which is a higher threshold than the ICTY later on adopted in the Tadic case.3738 Here, the ICTY found that ‘overall control’ suffices as to internationalize an initial NIAC. This amount of control required for incurring responsibility continued to be an aspect on which the ICJ and the international criminal tribunals could not agree. The ICJ maintained their view of ‘effective control’ being necessary for an IAC in the armed activities39 case and in the genocide decision, while the view of the ICTY was later on adopted by the ICC in the Lubanga40 case arguing ‘overall control’ to be sufficient. This would have to go beyond the mere financing and equipping of such forces and involve participation in the planning and supervision of military operations. The foregoing would be easier to proof than the ‘effective control’ threshold that the ICJ emphasized. Reason for this difference is partly the fact that the criminal courts aim at establishing individual criminal responsibility while the ICJ is preoccupied with state responsibility, and for a state to be responsible for armed groups activities in a foreign country logically requires a higher threshold.
However, this applies mainly when the intervention takes place in support of the insurgents and against the governmental forces of the territory. This seems sensible since the rules of IAC were initially meant for conflicts between states. Therefore, it applies in armed force used by states, vis-à-vis each-other. Third-state intervention does not change the non-international character of an armed conflict if it is performed on invitation by the government of the territorial state. This also relates to a multinational coalition intervening on the side of a host state.41 The character of the conflict depends on whether the responsible territorial government has given its consent. Whenever air strikes by the coalition take place, although no explicit consent is given, the Syrian government is mostly informed
36
Dieter Fleck, The Handbook of International Humanitarian Law, 2013, Oxford University Press, p. 582
37 ICJ, Case concerning the military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 27 Jun, 1986, para 5
38 ICTY Appeals Chamber, prosecutor v. Tadic, decision on the defence motion for interlocutory appeal on jurisdiction 39
ICJ, Congo v. Uganda, 2005 para. 109 40
ICC, Prosecutor v. Thomas Lubanga Dyilo, 2012 41
exactly of the locations. Furthermore, at the time the intervention began, the Syrian military radar was ‘passive’ during the air strikes, with no attempt to counter US aircrafts.42 The foregoing proves that the intervention is de facto taking place on the side of the government, therefore, the air strike campaign explicitly targeting IS, does not internationalize the conflict.
The other option then is proving that the organized armed groups are under such ‘overall control’ of other states. On the one hand, several statements of the Syrian government accused foreign parties of furthering their own politics by using the insurgents in Syria as a proxy. There is credible evidence to suggest that Qatar, Saudi Arabia, Turkey and Jordan were supplying the rebels with weapons. It has consequently been argued that the current conflict amounts to a so-called proxy war.43 However, these allegations continue to be refuted and it is unclear whether states functioned as merely transit places or were actually supplying the weapons. As for the training and providing of equipment to opposition groups by the U.S, although this has certainly taken place, it does not render the conflict international without the necessary ‘overall control’ over the groups. The fact that the altering
compositions and allegiances of the opposition groups caused certain fighters that previously enjoyed the support of the U.S. now to be targeted by the coalition, only emphasizes the lack of control over these groups. Due to the large amount of states only slightly sponsoring the rebel groups and the absence of organizational structure of foreign support, the groups continually rebrand themselves in search for funds and thereby prevent any ‘overall control’ by foreign parties to establish.
Another suggestion is that the participation of foreign fighters to the conflict as members of the non-state armed groups turns the civil war into an international armed conflict. However, taking for instance the Dutch Syria-fighters, their allegiance clearly aligns completely with the interests of the rebel-group. There is absolutely no control of the Dutch government over the activities of opposition groups having members with the Dutch nationality. The government of the Netherlands merely monitors whether its citizens depart for Syria and attempts to prevent their trip. Moreover, since a considerable amount of Syria-fighters join the same group that the Dutch army is performing air strikes on in Iraq; IS, one would argue that they do not enjoy the support of the Dutch state. Therefore, the mere fact that some fighters in Syria have the Dutch nationality does not internationalize the conflict to the extent that it calls for the law of international armed conflicts to be applicable. The main difference this would make is the possible providing of jurisdiction for Dutch courts on the basis of active nationality. These jurisdictional issues will be assessed a bit further on in this thesis.
Overall, the conclusion is that the conflict in Syria amounts to a non-international armed conflict. The district court of The Hague in the Netherlands was of the same view in assessing a similar question concerning the war in Afghanistan between 1979 and 1989. It concluded that ‘even
42
http://www.washingtonpost.com/world/syria-informed-in-advance-of-us-led-airstrikes-against-islamic-state/2014/09/23/848d79ae-4315-11e4-b437-1a7368204804_story.html
43
David Ignatius, Foreign Nation’s Proxy War in Syria Creates Chaos, The Washington Post, available at http://www.washingtonpost.com/opinions/david-ignatius-foreign-nations-proxy-war-creates-syrian-chaos/2014/10/02/061fb50c-4a7a-11e4-a046-120a8a855cca_story.html
though the regime was supported by Russian advisors and military equipment, this does not alter the primarily non-international character of the conflict. An international armed conflict after all, is mainly characterized by taking place between sovereign states.’44 Consequently, also in this case, the law of international armed conflict does not apply.
Consequences
As a consequence of this classification, the only treaty law substantially applicable to the acts of non-state armed groups is article 3, common to the Geneva Conventions. Nevertheless, it has been argued that IAC rules can be interpreted in such manner that they apply to internal conflicts as well.45 Perfidy for instance, is a suitable crime to apply by analogy in NIAC as well. Armed reprisals on the other hand, are prohibited in IAC, which is difficult to impose in a civil war. IHL in non-international armed conflict is currently in quite an unbalanced and chaotic state, not ensuring sufficient legal certainty.46 On the one hand, states as sovereign actors will codify rules primarily in their own interest; on the other hand, the absence of for instance combatant status decreases the incentive for non-state actors to respect IHL. Other applicable IHL can be found in other Conventions and the ICRC study on
customary IHL.47 However, as for treaty law, common article 3 is the only Geneva law that applies to the non-state armed groups fighting in Syria and whose violations amount to ‘war crimes’.
According to common article 3, its scope reaches: [each party, in] ‘the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. Syria has ratified the Geneva Convention including CA3 on November 2, 1953 and is therefore one of the High Contracting Parties.48 In addition, the armed conflict must take place on the ‘territory’ of a state party. This however, does not mean all the armed activity must take place on this territory. The emphasis is put on the requirement of one of the parties involved being a ‘high contracting party’, not necessarily the conflict actually taking place in that state.49
The classification of the conflict as a NIAC also has consequences for other than substantive law. Most importantly, war crimes committed in an international armed conflict would if they fall under article 8 (2) (a) of the Rome Statute qualify as so-called ‘grave breaches’ that provide universal jurisdiction. That does however not mean that for instance Dutch courts do not have jurisdiction in other cases, as the International Crimes Act provides jurisdiction for the district court in The Hague. Furthermore, it also has consequences for application of the wording in the article to the committed act. For example, under CA3, the notion of ‘protected person’ refers not only to a citizen or person not
44
Gerechtshof ‘s Gravenhage, 29 January 2007, ECLI:NL:GHSGR:2007:AZ7147 45
ICTY, prosecutor vs. Tadic, Appeals Chamber Judgment 1995, par. 119; ‘[w]at is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’.
46
Robert Kolb, International Humanitarian Law, Edward Elgar Publishing, Cheltenham 2014, p. 32
47 Other conventions; those on prohibited weaponry and the protection of cultural objects. A relevant general principle would be the humane treatment of protected persons under control of the armed group.
48
https://www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=SY 49
directly taking part in hostilities but that individual must also qualify as an ‘enemy’.50 Under the International Crimes Act however, a protected person is an individual not directly taking part in hostilities. Further on in this thesis, these jurisdictional and contentious issues will be applied to Dutch members of non-state armed groups in Syria. At this point it suffices to illustrate the relevance of classification to determine which law is applicable to the Dutch Syria-fighters.
The International Committee of the Red Cross has provided an extensive research on currently valid customary IHL. Its purpose is to determine the customary IHL rules applicable to all parties to a conflict, regardless of whether or not they have ratified the treaties containing the same or similar rules.51 Some provisions were found to be customary that are similar to APII, namely the prohibition of attacks on civilians, the obligation to respect and protect medical and religious personnel, the prohibition of starvation, the obligation to respect the fundamental guarantees of civilians and persons hors de combat, the prohibition of attacks on objects indispensable to the survival of the civilian population, the obligation to protect persons deprived of their liberty, the obligation to search for, respect and protect the wounded, sick and shipwrecked and the specific protections afforded to women and children.52 Even though the Dutch courts cannot apply customary law in adjudicating war criminals, it nevertheless might serve as indication of opinio juris on acts prohibited in the conduct of hostilities.
50
A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 117
51 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, 2 volumes, Volume I. Rules, Volume II. Practice (2 Parts), Cambridge University Press, 2005
52
Customary International Humanitarian, Volume I. Cambridge University Press, 2005, rules 1, 25, 53, 54, 87-105, 109-111, 118, 121, 125,134-137
III. THE ELEMENTS OF WAR CRIMES
In the previous chapter the existence of a non-international armed conflict has been established to which common article 3 of the Geneva Conventions and article 8 (2) (c-f) of the Rome Statute is applicable. In order to determine whether substantively a war crime in the sense of these articles has been committed, the other elements need to be fulfilled as well. What distinguishes a war crime from an ordinary crime is the context of the armed conflict; the committed crime is closely related to the hostilities, of which the location is less significant than the actual connection to it. This element is referred to as the ‘nexus’ or ‘link’ with the armed conflict. In absence of this link, the crime committed would be punishable by domestic law rather than constitute a war crime.
Beside this nexus, in order to constitute a war crime, required is a violation of the law and customs of war with the victim being a ‘protected person’. The term ‘protected person’ is used here in a broader sense meaning persons that are not directly participating in hostilities which renders an attack on this individual unlawful. Without the context of an armed conflict, any murder with no circumstance precluding wrongfulness such as self-defense, is illegal per se. During an armed conflict however, the laws and customs of war hold that an opponent can lawfully be killed, unless that person has the status of a protected person. The conditions for assigning this status differ according to the type of conflict. Along with varying interpretations on both the nexus and the status of protected persons this makes further elaboration on these elements of a war crime necessary.
The status of protected persons
In international armed conflicts, the Geneva Conventions award certain groups the status of protected persons. This concerns the wounded and sick, shipwrecked, prisoners of war and civilians that are not actively taking part in the hostilities. An attack on these persons is unlawful and would constitute a war crime when its commission is sufficiently linked to the conflict. During an IAC, the prisoner of war status is not exclusively assigned to members of state armies. Article 4 of Geneva Convention III states that also members of militias and volunteer corps are to be given prisoner of war treatment under the conditions that they form part of a group that is:
a. under command by a person responsible for its sub-ordinates b. having a distinctive sign recognizable at a distance
c. carrying their arms openly
d. conducting their operations in accordance with the laws and customs of war53
These ‘combatants’, when captured and disarmed are entitled prisoner of war status and become ‘protected persons’ whose killing is unlawful.
53
In internal armed conflict however, no notion of combatants exists and thus no prisoner of war status for captured fighters. The willingness of states to provide broad protection in drafting treaties for international armed conflicts is harshly decreased when it comes to regulating their internal armed conflicts. In civil wars technically no notion of ‘protected person’ exists. It is however considered a war crime to kill individuals not directly taking part in hostilities. A precise definition of the term ‘direct participation in hostilities’ does not exist. According to the ICRC in their interpretive guidance however, factors include;
1. Threshold of harm; the extent to which an individual can adversely affect military or inflict injury. 2. Direct causation; the link between the act and the harm likely to result.
3. Belligerent nexus; the specific design of the act to support one party to the conflict.54
Direct participation in hostilities distinguishes a protected civilian from a ‘fighter’. Complications arise as to the question when exactly such a fighter regains his protected status the moment he is captured, disarmed and therefore not directly taking part in hostilities anymore.. Due to these
differences and complications, the status of a person in a non-international armed conflict is assessed on a case by case basis.
Nexus with an armed conflict
When war crimes are considered to be perversions of accepted military practice, a link between the crime and actual military practice somewhere must be established. To constitute a war crime, the offence must be linked to the hostilities to the extent that it would not have been established in this manner had it not been for the armed conflict. The link between the offence and the conflict must objectively be established, possible internal motives of the perpetrator are not to play a major role in assessing the nexus. For example, a crime out of pure hatred already existing before the conflict might well constitute a war crime if the conflict created the situation in which its commission is made possible. In other words, the armed conflict must have both created the situation, and provided the opportunity to commit the offence. Its contribution must have somehow attributed to the aim of the military campaign, even when this has not been the intention of the perpetrators.55 For instance, the International Military Tribunal prosecuting war crimes of world war II convicted steel-factory owner Röchling for war crimes even though part of the conduct had only been carried out for the benefit of the firm.56
Linking the crime to the hostilities is easier when it concerns an international armed conflict,
54 Nils Melzer, legal advisor ICRC, interpretive guidance on the notion of direct participation in hostilities, ICRC, may 2009
55 Antonio Cassese, The Nexus Requirement for War Crimes, Journal of International Criminal Justice 10 (2012), 1395-1417, Oxford University Press
56
Judgment of the International Military Tribunal for the Trial of the German Major War Criminals, Nuremberg, 30 September and 1 October 1946 (‘IMT Judgment’), at 52
for the position of combatants versus civilians is relatively clear. The killing of a civilian by an official of a foreign army would quite obviously not have happened without the context of the international armed conflict. Moreover, the unbalanced capability to use force between a military official and a civilian makes it obvious that the conflict created the opportunity for the crime. In the opposite case of a civilian killing a soldier, combined with the probability that they possess different nationalities i.e. allegiances, would prove the conflict created the situation for the crime to be committed.
In internal armed conflicts on the other hand, the situation is often much less evident. First of all, in internal conflicts, state army officials and rebels often possess the same nationality that makes any allegiance to a party and thus the necessity for the conflict more complicated to determine. This also makes it more difficult to distinguish between civilians and fighters. Despite the possibility for both combatants and civilians to commit war crimes, the nexus is more complicated to establish when it concerns a civilian as a perpetrator and a civilian as a victim. For instance, a crime committed by a civilian against a civilian of the same party to the conflict is not a war crime. On the one hand the conflict might have created the opportunity for the crime, when a civilian killing his neighbor who he hates, takes advantage of the absence of functioning police or justice system. This however is not a war crime, for the conflict creating the opportunity and the incentive for the crime are cumulative conditions and have to be both fulfilled. Therefore, the crime has to be aligned with the campaign of one of the parties to the conflict and the perpetrator and the victim have to be of opposing allegiances. Just his allegiance then with one party is sufficient, no coordination with any military efforts is necessary to prove a link to the armed conflict. For instance, The Nuremberg Tribunal convicted doctors performing medical experiments for war crimes and found the fact that the victims were of the opposing party sufficient to establish the nexus.57
International Courts
The most extensive elaboration on the establishment of the necessary nexus with an armed conflict has been given by the ICTY in the Kunarac case. This reasoning remains the most useful for the purpose of decisions in current cases. Considering this importance, the statement is depicted in its entirety. The Appeals Champer stated as follows:
“what ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment –the armed conflict- in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be
57
established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient that his acts were closely related to the armed conflict.”58
According to the Appeal Chamber, this close relationship can be deduced by using the following parameters; 1. The perpetrator being a combatant; 2. The victim being a civilian; 3.The victim being of the opposing party; 4. The act serving the military campaign of one of the parties; 5. The perpetrator acting in the context of official duties.
Despite the very welcome effort of the ICTY to provide clarity on the establishment of a nexus, these parameters still provide a wide discretion an ample room for interpretation to use any of these factors supporting a desired conclusion. Therefore, terms such as ‘under the guise of the armed conflict’ are deemed too vague and that this flexibility resulting in different appraisals and outcomes is undesirable when considering legal certainty.59 On the other hand, the broad definition does not per definition exclude a consistent application. In fact, it has been argued that ‘in furtherance’ and ‘under the guise of’ are translations of the more concrete assessment tools of the conflict creating the situation and providing the opportunity for the crime.60
The finding of a nexus has also been the topic of cases before the ICTR. Some of these
assessments seem less useful for current cases. For instance when the Trial Chamber in Akayesu found what came to be referred to as the ‘public agent test’, namely the need for proof that the accused was “legitimately mandated and expected, as a public official or agent or person otherwise holding public
authority or de facto representing the Government, to support or fulfill the war efforts”.61 Also in Kayishema en Ruzindana the Trial Chamber stated that there must be a connection between the accused and the armed forces involved in the conflict. The Appeal Chamber of the ICTR however corrected this in its decision in Akayesu that this connection is not required for the establishment of a nexus.62
The cases before the ICTR therefore, are of less use in determining a nexus for the purpose of this thesis. The assessment of the ICTY in the Kunarac case has a more consistent application and is valued higher as a consequence.
58
Judgment, Kunarac (IT-96-23 & IT-96-23/1-A), Appeal Chamber, 12 June 2002, 57-59 59
Harmen van der Wilt, War Crimes and the Requirement of a Nexus with an Armed Conflict, Journal of International Criminal Justice 10 (2012), 1113-1128 p. 1124
60
Antonio Cassese, The Nexus Requirement for War Crimes, Journal of International Criminal Justice 10 (2012), 1395-1417, Oxford University Press, p. 1406
61
Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, x 640. 62
Dutch courts
An important feature of prosecution by a national court is the use of domestic law. Domestic courts have usually closely followed the description of the elements of war crimes as codified and
adjudicated by international courts, but nevertheless enjoy some discretion in their interpretation.63 The Dutch courts for instance, prosecute on the basis of the International Crimes Act rather than the Rome Statute of the Geneva Conventions. Before the drafting of the ICA, its predecessors such as the Criminal Law in Wartime Act. In adjudicating war crimes committed during world war II the Dutch court applied a broad interpretation of the nexus requirement. Putting most of the emphasis on jurisdictional conditions the nexus was assumed to exist in absence of proof of the opposite. The most significant case in the Netherlands concerning the establishment of a nexus with an armed conflict is the Mpambara case. Mpambara was accused of harassing, maiming and killing Tutsi’s at a roadblock he set up in Rwanda. The District Court initially denied the existence of a nexus stating that the armed conflict and the genocide were two distinct situations. Being a civilian,
Mpambara could well be in charge of a roadblock but in absence of military capacity, his conduct had according to the district court no link with the armed conflict.64
The Court of Appeal however denied this absence of military capacity to be decisive for the establishment of a nexus. It emphasized that the genocide and the armed conflict were in fact closely related as the large scale operations and their preparations were performed in close cooperation by the same persons and institutions.65 The Court affirmed the existence of a nexus with the armed conflict since it had created the opportunity and the pretext for the crimes to be committed.66 It therefore can be argued that it applied the criteria of the Kunarac case; ‘under the guise’ and ‘in furtherance of’ in the more concrete translation of the armed conflict providing the ‘opportunity’ and the ‘incentive’ for the crimes.
The ‘Elements of Crimes’
In drafting the International Crimes Act, the Dutch government stated that its shall be interpreted according to existing international law. By doing so, the Dutch court can use the ‘Elements Of Crimes’ that have been added to the Rome Statute and adopted in article 9 of the Statute.. They were drafted In order to provide greater certainty and clarity concerning the content of each crime.
According to this attachment to the Rome Statute the elements common to the provisions in article 8 are; 1. The victim is either hors de combat or not taking direct part in hostilities; 2. The perpetrator is aware of this status of the victim; 3. The conduct took place in the context and was associated with an international conflict; 4. The perpetrator is aware of the existence of an armed
63 Public Prosecutor v. Van Anraat , § 7 64
Rechtbank (District Court),The Hague, judgment of 23 March 2009, LJ number: BK0520 65 Gerechtshof (Court of Appeal), The Hague, judgment
of 7 July 2011, LJ number: BR0686 66
Harmen van der Wilt, War Crimes and the Requirement of a Nexus with an Armed Conflict, Journal of International Criminal Justice 10 (2012), 1113-1128
conflict.
This being aware of the circumstances of the case does not preclude the application of the mode of liability of dolus eventualis to war crimes. This entails conviction on the basis of the perpetrator willingly taking the foreseeable risk of the outcome in which it resulted. For instance, in the Van Anraat case, he was convicted for complicity in war crimes in selling raw materials for chemical weapons that were used by Saddam Hussein in his attack on the Kurds in Halabja in 1988. Considering the notion of ‘protected persons’ it is stated that ‘it was the understanding of the drafters in informal consultations that the term hors de combat should not be interpreted in a narrow sense’. This means that also combatants and members and armed forces can be protected if they fulfill the condition of not taking direct part in hostilities.
In conclusion, the existence of a war crime can be deduced as follows. The first requirement is that the victim is a protected person, in the broader sense of not directly participating in hostilities. The second condition is that an armed conflict created the situation and the opportunity for the crime. In case the accused is a member of the armed forces this is rather easy to establish. When it concerns a civilian however the offence must be carried out in accordance with the military campaign. This can be derived from the allegiance of the accused with a party to the conflict opposing the party to which the victim belongs. Having proved this, a sufficient nexus exists as the conflict created the situation and opportunity for the offence and the crime committed is a war crime.
IV PROSECUTION BY THE DUTCH COURT
As the locus delicti, the Syrian courts would be the forum conveniens for the adjudication of war crimes committed on its territory. However, mostly during internal armed conflicts, the state on whose territory a conflict is taking place is unable to rightly administer its judicial system. That certainly accounts for Syria in this case.
The International Crimes Act
Apart from being the transposition of the relevant articles of the Rome Statute into domestic law, certain alterations are added. For instance, the ICA contains an extended penalization of the responsible superior. Under article 1.1(b) the term ‘superior’ is said to also apply to a civilian as opposed to exclusively applying to army officials. This civil superior must exercise factual leadership or be in command of subordinate and act intentionally.
Another deviation from previous legislation is the inclusion in article 1.1(e) as a separate offence of torture with the aim of compelling the victim to confess, to gather intelligence, to punish, threat, force to do or to tolerate something as imposed by a governmental institution.
As opposed to the provisions in the Rome Statute, the International Crimes Act is also applicable to persons that have not yet reached the age of 18 years. Article 26 of the Rome Statute precludes the jurisdiction of the ICC over persons younger than 18. When drafting the International Crimes act however, the Dutch lawmaker has chosen not to include this provision. For the matters not included in the ICA, the regular domestic Dutch criminal provisions are applicable and thus persons in the age of 12 – 18 can also be prosecuted under the ICA.67
Furthermore, the ICA does not exclude the criminal liability of legal persons, as opposed to article 25 of the Rome Statute that explicitly states that the ICC has only jurisdiction over natural persons. However, in the clarifying declaration of the ICA draft, the Dutch government stated that nevertheless, concerning the nature of international crimes it is desirable to prosecute first and foremost natural persons as perpetrators.68
The war crimes in non-international armed conflicts of article 8 of the Rome Statute are translated in article 6 of the ICA. Article 7 ICA is the transposition of article 8 sub 2 under e of the Rome Statute and consists of provisions that increase sentences in the case certain results of the crime materialize. For instance a violation of the laws and customs of war, that results in the death of the victim.
The prima facie criminality of the acts committed can rather easily be established. In Knezevic (II), the District Court determined the non-international character of the conflict in Bosnia and
Herzegovina. It also stated that the alleged crimes, if proven, constituted violations of CA3 and
67
J.R.G. Jofriet, De Wet Internationale Misdrijven, Kluwer bv, 2009. p. 6 68
therefore violations of the law and customs of war.
In casu, the crimes committed in Syria clearly constitute war crimes in the sense of article 6 ICA. The killing, maiming and harassing of unarmed civilians, public executions without any form of a trial by an independent court and the withholding of basic needs for survival and medical care from civilians are clear violations of the laws and customs of war.
Jurisdiction
In order to convict war criminals, both jurisdiction for the national court and criminalization of the act must be established.69 Where article 3 Common to the Geneva Conventions criminalizes the violations of the laws and customs of war during a non-international conflict and the Rome Statute arranges for jurisdiction of the International Criminal Court, the International Crimes Act provides for jurisdiction concerning these penalized acts.
According to article 2 sub a of the International Crimes Act the Dutch courts have jurisdiction over any perpetrator of the crimes in the ICA whenever they are present on Dutch territory. This is a form of indirect universal jurisdiction. Universal in the sense that the absence of any relation of the accused with the Netherlands is of no obstruction to jurisdiction, indirect as a result of the condition that the accused is present on Dutch territory.70 The problem in adjudicating war crimes often lies with the inability or unwillingness of the domestic courts of the territory in conflict. Therefore, in order to assume their responsibilities, other states may prosecute on the basis of universal jurisdiction.71 Also in Knezevic, the supreme court decided that involvement of the Netherlands in the conflict was not a condition for the exercise of jurisdiction.72
Considering the application of the aut dedere aut judicare principle to international crimes in NIAC, Cassese argues the interpretations merely give the power to adjudicate, instead of an
obligation. International law leaves discretion for states to provide for universal jurisdiction in their legal order. Taking account of the fact that adjudication is not an obligation, is surely is not prohibited by international law. Therefore, jurisdiction of the district court in The Hague is not entirely dependent on the perpetrator having the Dutch nationality. This would therefore not constitute an obstruction for the proposed withdrawal of Dutch nationality of Syria fighters.
As for the topic of this thesis however, Dutch citizens can be prosecuted on the basis of active nationality. In article 2 sub 1 under c the International Crimes Act provides jurisdiction over any person with the Dutch nationality committing these crimes abroad. For perpetrators that remain protected within Syria however, trials would need to be carried out in absentia.
As for the procedural matters, the active conflict limits investigators’ access to valuable
69
Mettreaux, Dutch Courts’ Universal Jurisdiction over Violation of Common Article 3 qua War Crimes, Int Criminal Justice (May 2006) 4: 362-371
70 Jofriet, p. 47 71
William A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, Fordham International Law Journal, 26 (2002)
72
forensic evidence and to witnesses. The UN Commission of Inquiry however has stated that it holds a growing store of evidence related to named individuals which it will make available to any credible justice initiative. Moreover, The Syrian Justice and Accountability Centre (SJAC) is among other initiatives that are processing considerable amounts of data originating from a wide range of available sources, documenting violations by all sides in the conflict.
V CONCLUSION
In conclusion, the answer to the question of the extent to which Dutch courts can prosecute war crimes committed by individuals with the Dutch nationality in Syria can be given in a rather simple sentence; yes they can.
In order for an act to constitute a war crime, certain conditions need to be fulfilled. First, in order for Interntational Humanitarian Law to be applicable, an armed conflict must be taking place. The existence of the armed conflict in Syria can be deduced from the intensity of the hostilities and the sufficient organization of the participating groups such as IS and Jabhat Al Nusra.
The classification of the conflict is necessary to determine which laws are applicable to the conflict. It is possible for an initially civil war to internationalize, most notably through an intervention of foreign states. The current foreign intervention in Syria however is de facto taking place on the side of the Syrian government. In absence of a conflict between two or more states vis-à-vis each-other, the conflict in Syria is classified as a non-international armed conflict.
The law of non-international armed conflicts is less developed than the law of wars between states. Article 3 common to the Geneva Conventions of 1949 consists of provisions criminalizing acts in internal armed conflicts that violate the laws and customs of war. These international humanitarian laws have been included in the Rome Statute establishing the International Criminal Court that entered into force on July 1, 2002. As a consequence of the principle of complementarity, these provisions have been transposed into Dutch domestic law in the form of the International Crimes Act. Article 6 of the International Crimes Act contains the penal provisions and unlawful conduct in non-international armed conflicts. In addition, article 2 of the International Crimes Act provides the Dutch district court in The Hague with jurisdiction on the basis of active nationality over Dutch citizens committing these crimes abroad.
In order for a war crime to establish, certain other elements need to be fulfilled. First, the victim of the crime must possess the status of a protected person in the broad sense of not actively taking part in hostilities. Most significantly, a nexus or link must be established between the crime and the armed conflict. This nexus exists when the conflict created the situation and the opportunity for the crime. In a non-international conflict this is more complicated to determine. The allegiance of the accused as being opposed to the allegiance of the victim can be decisive in establishing this nexus. In casu, the crimes committed in Syria for which there is ample evidence to be found in several reports clearly constitute violations of the laws and customs of war and are punishable according to article 8 sub 2 under c and e of the International Crimes Act.
As more Dutch fighters come home from Syria, the number of prosecutions under the active nationality principle is set to increase. This might well serve as a deterrent for others and prevent them from joining the fight with the risk of committing or becoming the victim of war crimes.
