The Dutch Parliament is in the process of amending the International Crimes Act (2003) to include genocide, making it easier for the Hague District Court’s War Crimes Chamber to prosecute individuals for war crimes around the world. A conversation with the Chamber’s President, Judge Roel van Rossum.
By Geraldine Coughlan, The Hague
How many cases are you currently investigating?
The court is investigating a case involving 5 suspects – alleged leaders of the LTTE, or Tamil Tiger separatist group in the Netherlands, Benelux and other countries.
They are accused of war crimes including membership of an international criminal organisation, recruiting child soldiers, terrorist crimes and planning attacks and murder.
The court is also looking into the alleged involvement of a company and two people in the building of the barrier between Israel and Palestine, as well as a case of alleged atrocities in Rwanda.
What is the role of The Hague War Crimes Chamber and how does it compare with other European countries that apply universal jurisdiction?
The court’s role is to apply universal jurisdiction as enshrined in the International Crimes Act, which covers war crimes here and abroad. Cases can be referred by other countries, so the court has wide scope – apart from the limitation in Article 16, which grants immunity to foreign heads of state, government leaders and ministers, as long as they are in office. Universal jurisdiction in the Netherlands therefore, doesn’t hinder international diplomatic traffic.
How effective is the new genocide law in the Netherlands?
The Netherlands has been able to prosecute suspects for genocide since 1970, via the Genocide Convention – but only if a crime was committed by or against a Dutch national. Now that the International Crimes Act is being expanded, the court will have universal jurisdiction to prosecute non-Dutch nationals for genocide, as is the case in some other European countries, such as Germany, Belgium, France, Norway, Sweden and Finland. The revised law will also permit international courts to refer cases to The Hague War Crimes Chamber. The process for a new genocide law was set in motion after the ICTR asked The Hague District Court to take over two of its cases, but The Hague War Crimes Chamber was unable to deal with the genocide charges. The updated International Crimes Act will enable the court to do this.
Is there a higher standard of evidence and proof required in The Hague War Crimes Chamber, than in ad hoc courts, such as the ICTR & SCSL?
The system in the Netherlands allows for witnesses to submit many written statements, which saves the court time listening to oral testimony. It makes the process more efficient, as there is more time to include witnesses and experts from other countries. This speeds up the trial, as in the recent cases of the Afghan generals and the Dutch businessmen Frans van Anraat and Guus Kouwenhoven.
The standards of evidence and proof in the ad hoc courts, on the other hand, are based on the common law system in which the witnesses give oral testimony. But this takes up alot of the court’s time. In the end though, it’s not a question of whether the judges’ decisions are based on different standards – it’s just another way of reaching their decision.
The Netherlands has just decided on a police mission to Afghanistan. Do you have the power to investigate allegations of war crimes by Dutch officials?
The Military Court in Arnhem has the competence to investigate the conduct of Dutch soldiers and police, but if a crime is committed together with civilians, then the case can be judged in a civilian court – in this case, that would be The Hague War Crimes Chamber. In exceptional circumstances the government can set up a mobile military court that can pass judgement abroad.