A bill expanding the jurisdiction of Dutch courts to hear cases involving international crimes was adopted by the Dutch parliament on 10 November. In particular the bill, which still has to be adopted by the Senate, allows for the exercise of universal jurisdiction over crimes of genocide committed since 1970. Also, for jurisdiction over cases referred to the Netherlands by international criminal tribunals.

By Cedric Ryngaert, Associate Professor of International Law, Utrecht University

To their credit, these legal changes close some remaining impunity gaps in the Netherlands that had become quite glaring over the last few years. While the Dutch Parliament adopted an International Crimes Act in 2003, which provided for the exercise of universal jurisdiction over war crimes, crimes against humanity, genocide, and torture, this act did not have retroactive effect. This meant that the act did not apply to crimes committed before 2003, a legal lacuna that was particularly problematic for crimes of genocide, as no earlier statute conferred universal jurisdiction regarding such crimes (unlike torture and war crimes).

As a result, alleged perpetrators of crimes of genocide committed, amongst other killing fields, in Rwanda could not be prosecuted, at least not for genocide, the ‘crime of crimes’. Furthermore, Dutch courts did not have jurisdiction to hear cases transferred by international criminal tribunals, typically in the framework of their completion strategy. Thus, a transfer of an ICTR accused (Bagaragaza) under Rule 11bis of the ICTR Rules of Evidence and Procedure failed, and he had to be tried by an already overstretched ICTR.

Looking foolish
The government realised that these legal deficiencies made the Netherlands – a leading promoter of international justice that hosts a considerable number of international courts and tribunals – look foolish in the eyes of the international community. Hence, remedial action was needed. Under the new bill, Dutch courts have jurisdiction over crimes of genocide stretching back to the entry into force of the first Dutch statute on genocide (1970). The Netherlands can now extradite suspects of international crimes to other States even in the absence of a bilateral extradition treaty. It can also try suspects transferred from international criminal tribunals. Clearly, these legislative reforms further accountability for international crimes.

Not clear
However, some critical observations on the law can be made as regards (1) Dutch prosecutors’ and courts’ financial capacity to take up cases of international crimes, (2) the prosecution of crimes against humanity, and (3) the position of victims.

Firstly, it is not clear whether the Dutch judiciary has the capacity to conduct additional investigations and prosecutions of international crimes. The Dutch Council for the Judiciary calculated that the treatment of new cases, which is now facilitated by the legislative changes, would require an additional investment of €630.000 (excluding security), and the Dutch Association for Jurisprudence stated that one judge needs six months (!) to deal with only one international crimes case. The Government has not clarified whether in times of austerity it can provide those resources.

Lucky
One political party, the PVV, proposed tapping the development cooperation budget to fund international crimes prosecutions. However rash such a proposal may seem, undeniably, resources will have to be diverted away from other laudable programmes to fund Dutch atrocity trials. The government has luck on its side, however. In June, the ICTR finally cleared the way for transfers of ICTR cases to Rwanda, and in October, the European Court of Human Rights sanctioned the extradition by Sweden of a génocidaire to Rwanda. These evolutions allow Rwandan génocidaires to be transferred to Rwanda to stand trial, and obviate the need for the exercise of universal jurisdiction by third States such as the Netherlands.

Before the ink is dry
But as the ink of the amended Dutch law is not even dry, its main rationale - the facilitation of Dutch jurisdiction over crimes of genocide committed in Rwanda – may already appear to be undercut. Still, the statute may prove valuable for some other past crime situations – the explanatory memorandum mentioned Afghanistan, the Balkans, Iraq, and Argentina, alongside Rwanda – and provides a legal basis for any future referral by any international criminal tribunal to the Netherlands (if ever any such need would arise again).

Secondly, in spite of the progress made as regards genocide, the new bill has not improved the regime governing the prosecution and extradition of alleged perpetrators of crimes against humanity. It failed to grant retroactive effect to the 2003 International Crimes Act and, in the absence of a specific extradition treaty, no alleged perpetrator of crimes against humanity can be extradited from the Netherlands. Most stakeholders pointed out that this situation was not desirable, but that the law bound the government’s hands. Still, it is arguable that individual criminal liability has been attached to crimes against humanity under customary international law for quite some time before 2003 (thereby removing concerns relating to the principle of legality), and that the principle of aut dedere aut judicare applies to any international crime, including crimes against humanity (thereby providing a customary law basis for extradition).

And thirdly, the position of victims participating in Dutch international crimes proceedings remains problematic. In a last-ditch amendment to the bill, the government ensured, at the behest of the National Office of the Public Prosecutor, that the amount of damages that victims could claim would no longer be limited to the puny €680 which it previously was, and that also relatives of victims could join the criminal procedure. Still, the bill remains silent about the statute of limitations for civil actions regarding international crimes, about the law applicable to such actions, and about the enforcement of money judgments against defendants.

Inspiration
This may mean that civil actions may be barred by statutes of limitations, that they remain governed by the lex loci delicti (which is often disadvantageous to the victims), and that the government will not take the lead in enforcing civil judgments.

By and large, however, the Dutch bill deserves international acclaim. In particular, it demonstrates that the principle of legality need not constitute an obstacle to prosecutions brought under the universality principle regarding (treaty-based) international crimes that were committed at a time when domestic jurisdiction over them was lacking. This may inspire other States to follow suit and to bring to trial, or to extradite, any remaining perpetrators of international crimes who are residing in their territory.