CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 juillet 2010

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He is currently serving a sentence of imprisonment ( gevangenisstraf ) in Zoetermeer Prison, the Netherlands. He was represented before the Court by Mr G. Spong, a lawyer practising in Amsterdam. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant and apparent from information accessible to the public, may be summarised as follows. 1.     Introduction 3.     The applicant was a businessman. Between April 1984 and August 1988 he purchased quantities in excess of eleven hundred metric tons of the chemical thiodiglycol in the United States and Japan, and, acting through companies based in a variety of countries, he supplied it to the Government of Iraq. After 1984 he was the Iraqi Government's sole supplier of this substance. 4.     Thiodiglycol is a precursor in a chemical reaction at the final stage of formation of 1,5-dichloro-3-thiopentane. One of a group of compounds known as sulphur mustards and better known as mustard gas, 1,5-dichloro-3-thiopentane has severe vesicant properties. In contact with the skin, it causes severe and potentially lethal chemical burns; in contact with the eyes, it causes inflammation possibly resulting in blindness; if inhaled, it blisters mucous membrane and lung tissue and can cause pulmonary oedema. Its known long-term effects on survivors include an increased risk of cancer in later life. Mustard gas, so called because of its smell, was first used as a battlefield weapon during the First World War, at the Third Battle of Ypres (July-November 1917). 5.     Mustard gas is known to have been used by the Iraqi military, along with other chemical weapons, against Iranian armed forces and civilians during the Iran-Iraq War (1980-1988) and in attacks against the Kurdish population of northern Iraq (1988). One such attack, carried out on the town of Halabja in March 1988, killed thousands of non-combatant civilians and injured thousands more. Among those later considered primarily responsible were Saddam Hussein Abd al-Majid al-Tikriti (known as Saddam Hussein), President of Iraq from 1979 until 2003, and Ali Hassan Abd al-Majid al-Tikriti, Secretary General of the Ba'ath Party in northern Iraq between 1987 and 1989, nicknamed “Chemical Ali”. 6.     Saddam Hussein was charged before the Special Iraqi Tribunal (later re-named Supreme Iraqi Criminal Tribunal) with the use of poison gas against Kurdish civilians in Halabja. However, he never stood trial on this charge; he was hanged on 30 December 2006 for another crime. 7.     Ali Hassan Abd al-Majid al-Tikriti was tried by the Special Iraqi Tribunal/Supreme Iraqi Criminal Tribunal on a plurality of charges; these included the 1988 Halabja gas attack, in respect of which he was found guilty. He was hanged on 25 January 2010. 2.     Criminal proceedings against the applicant (a)     The charges 8.     Charges were brought against the applicant in the Netherlands which may be summarised as follows: (1)     aiding and abetting genocide committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti against the Kurdish population of northern Iraq in a number of places including Halabja; in the alternative, aiding and abetting violations of the laws and customs of war committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti, as regards gas attacks on the Kurdish population of northern Iraq in Halabja and elsewhere; and (2)     aiding and abetting violations of the laws and customs of war committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti, as regards gas attacks on the territory of Iran. 9.     The acts constitutive of these crimes were stated to be the supply of various named chemicals, including thiodiglycol, to the Republic of Iraq as well as materials and advice for the manufacture of chemical weapons in violation of international law. The charges referred to several provisions of domestic legislation, including, as relevant to the case before the Court, section   8 of the War Crimes Act ( Wet Oorlogsstrafrecht ), taken together with Article 48 of the Criminal Code ( Wetboek van Strafrecht ). (b)     Proceedings in the Regional Court 10.     The trial opened before the Regional Court ( rechtbank ) of The Hague on 18 March 2005. On 23 December 2005 the Regional Court delivered its judgment. It acquitted the applicant of the first primary charge, aiding and abetting genocide, finding that genocidal intent on his part could not be proved; but it convicted him on the first alternative charge and the second charge. It sentenced him to fifteen years in prison and ordered him to pay sums of money in compensation to a number of named individuals who had joined the proceedings as civil parties. (c)     Proceedings in the Court of Appeal 11.     Both the prosecution and the applicant appealed against the Regional Court's judgment to the Court of Appeal ( gerechtshof ). 12.     In its judgment of 9 May 2007, the Court of Appeal of The Hague acquitted the applicant of aiding and abetting genocide as the Regional Court had done. It convicted him, however, of aiding and abetting violations of the laws and customs of war committed by Saddam Hussein, Ali Hassan al-Majid al-Tikriti and another person or other persons in a non-international or international conflict as the case might be, as regards gas attacks on the Kurdish population of northern Iraq in Halabja and elsewhere (the first alternative charge), and of aiding and abetting violations of the laws and customs of war committed by Saddam Hussein, Ali Hassan al-Majid al-Tikriti and another person or other persons in an international conflict, as regards gas attacks on the territory of Iran. 13.     The Court of Appeal's judgment concluded as follows (translation published by the Court of Appeal itself): “12.5 Conclusion Based on the above, the following conclusions can be made: a) The defendant played an important part by supplying the precursor Thiodiglycol [or TDG] to the Iraqi regime for the production of mustard gas: at least 38% of this substance had been supplied by him in the years 1980 up to and including 1988. If any TDG would also have been supplied from the United Kingdom to Iraq in those same years, this fact does not impair the qualification of 'important' regarding defendant's part in this matter. b) When the supplies by others eventually stopped no later than in the course of 1984, the defendant supplied at least another 1,116 tons of this precursor until the spring of 1988. c) The first shipment of TDG supplied by the defendant arrived in Iraq towards the summer of 1985; in that year he supplied a total of approximately 197 tons. Based on the considerations written under item 12.3 above, the Court deems it very likely that in the course of that year TDG supplied by the defendant was also used for the production and finally ended up in ammunition that was used for the attacks as mentioned in the charges. Conclusive evidence for his co-responsibility regarding the attacks mentioned in the charges (in so far as mustard gas was deployed in those attacks) is the following: d) As of 1985, the supplementation of the essential precursor TDG to the Iraqi regime depended completely on the supplies made by the defendant. e) For that reason, the unwholesome policy that was continuously carried out by the regime that from 1984 onwards seemed to find it necessary to deploy hundreds of tons of this poison gas during combat, depended to a decisive extent if not totally on those supplies. Taking into consideration the crucial significance that the shipments of TDG supplied by the defendant since 1985 had for the chemical weapon program of the regime, the Court finds the defendant (together with his co-perpetrators) guilty of being an accessory to providing the opportunity and the means for the proven attacks with mustard gas in the years 1987 and 1988. 13. Liability to punishment on account of the proven charges The proven charges constitute a punishable offence: Regarding the proven charges under count 1. alternatively: The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war, while that offence resulted in the death or grievous bodily harm of another person or that offence was an expression of a policy of systematic terror or wrongful actions against the whole population or a specific group thereof, committed several times. Regarding the proven charges under count 2: The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war, while that offence resulted in the death or grievous bodily harm of another person, committed several times. 14. Liability to punishment of the defendant No circumstance has become plausible that would rule out the punishability of the defendant. Therefore the defendant is liable to punishment. 15. Considerations regarding the applicable legislation The [War Crimes Act] which was applicable at the time of the period referred to in the charges, was amended several times afterwards; following the entry into force of the International Crimes Act (...) on 1 October 2003, the war crimes were devolved from the [War Crimes Act] to the [International Crimes Act]. Only the amendments to the law dated 27 March 1986 (...) and dated 14 June 1990 (...) are important when determining whether the later legal provisions are more favourable for the defendant than the law that was applicable during the period referred to in the charges. Pursuant to Act of Parliament dated 27 March 1986, a new [section] 10a was inserted into the [War Crimes Act], which makes it possible to impose an additional sentence provided by article 28, first paragraph, under 3 o , of the Penal Code (deprive a person of his/her active and passive right to vote) on account of – inter alia – a conviction for being found guilty of war crimes, while by Act of Parliament dated 14 June 1990, the death penalty as possible punishment was removed from the [War Crimes Act]. The [War Crimes Act] as it reads as of 1 January 1991, after the amendment by Act of Parliament of 14 June 1990, is more favourable to the defendant in terms of an eventual penalty. From the devolvement of the penal provisions that refer to war crimes from the [War Crimes Act] to the International Crimes Act, as from 1 October 2003, it cannot be said that they result in more favourable provisions for the defendant. Based on the provisions in article 1, paragraph 2, of the Penal Code, the [War Crimes Act] will have to be the starting point as it read on 1 January 1991. Furthermore with regards to complicity, the Court has taken into consideration article 49, paragraph 2, of the Penal Code, as it read until 1 February 2006 (the date of entry into force of the Act regarding reassessment of maximum penalties). Pursuant to article 10 (old), 49, paragraph 2 (old), 57 and 78 of the Penal Code and [section] 8 of the [War Crimes Act], as it read on 1 January 1991, viewed together and in relation to each other, the Court cannot draw any other conclusion than that in this case the defendant is liable to a maximum term of twenty years imprisonment. 16. Grounds for the punishment During the appeal trial, the advocate general moved that the sentence of the court of first instance be set aside and on account of the principal charge under counts 1. and 2. he demanded that the defendant be sentenced to a term of imprisonment of 15 years, less the period spent in pre-trial detention. In making its assessment as to what penalty should be imposed, the Court has taken into account the following considerations. During a number of years the defendant supplied raw material to the Iraqi regime for the production of chemical weapons. From 1985 until early 1988, in a total of twenty shipments he supplied at least more than 1,100 tons of Thiodiglycol (TDG) on the basis of three Letters of Credit. That substance was used for the production of mustard gas that was deployed during the war in Iran as well as in Iraq. By doing so during a number of years, the defendant has consciously made a substantial contribution to the continuing violation of the laws and customs of war committed by the Iraqi regime. Based on Dutch criminal law that was applicable at that time, a person who is found guilty of complicity in a criminal offence which carries a life sentence can be sentenced to a term of imprisonment of a maximum of 15 years. Seen the fact that the defendant committed the offence of complicity several times, in his case the penalty to be imposed will be a maximum term of twenty years imprisonment, which is based on the regulation set out in article 57, paragraph 2, of the Penal Code, concerning various offences for which one sentence is pronounced. In determining the punishment in this case, the Court has taken into account the following circumstances, that on the one hand relate to the seriousness of the offences, the circumstances in which they were committed, as well as the intended purposes of the punishment to be considered when fixing the punishment, and on the other hand the personal circumstances of the defendant. As results from the case file (in the period referred to in the charges), the Iraqi regime carried out multiple attacks with (among others) mustard gas during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, where Kurdish population groups lived that were suspected of collaboration with the Iranian enemy. Those attacks caused the death of at least thousands of civilians (that did not participate in the conflict) and caused permanent and severe health problems to very many persons. It is beyond doubt that the regime in Bagdad by doing so committed extensive and extremely gross violations of the international humanitarian law by using a weapon that was already prohibited by the Geneva (Gas) Protocol of 17 June 1925. The defendant has made an essential contribution to these violations – at a time that many, if not all other suppliers 'pulled out' with regard to the increasing international pressure – by supplying many times in the course of several years (among other matters) very large quantities of a precursor for mustard gas; in doing so the defendant made significant profits. Those supplies enabled the Iraqi regime to (almost) continue their deadly (air) attacks in full force during a number of years. Apparently the defendant did not give his deliberate support to the afore mentioned gross violations out of sympathy for the targets of the regime, but – as it should be assumed – the defendant acted exclusively in pursuit of large gains and fully neglected the consequences of his actions. Even today the defendant does not show any sense of guilt or any compassion for the numerous victims of the mustard gas attacks. The Court recognizes that the proven offences were committed over more than twenty years ago and that the defendant is a man of advanced age, who is to be expected to spend a large part of the remaining years of his life in prison. The Court will only be able to attach limited weight to this slightly mitigating circumstance. In this case the most important aspect concerning the determination of the appropriate sanction – considering the extreme gross violation of the principles of humanitarian law that took place and the important supporting role that was played by the defendant – is to point out to the victims and survivors, as well as to the international legal community, how much value is put on the actions of the defendant and what severe punishment can only be the consequence of these actions. Finally in fixing the appropriate punishment, the Court has taken into account the general prevention aspect. People or companies that conduct (international) trade, for example in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences. It should be made clear to them that they will have to face prosecution and long-term prison sentences, in accordance with the seriousness of the crimes they committed. Considering all of the above, the Court concludes that the only suitable and necessary reaction in these circumstances is a non-suspended prison sentence of a very long term as set out below.” 14.     The Court of Appeal sentenced the applicant to seventeen years' imprisonment; however, it rejected the claims of the civil parties as unsuitable for summary decision. (d)     Proceedings in the Supreme Court 15.     The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ), submitting a statement of points of appeal on 14 April 2008. He argued, referring to section 1(1) of the War Crimes Act, that the Netherlands courts lacked jurisdiction since the Court of Appeal had not convicted him of aiding and abetting crimes committed in “time of war” (as distinct from non-international or international “conflict”); section 1(2) of that Act could not apply, since the conflict, whether international or not, did not in any way involve the Netherlands. He also alleged a violation of Article 7 of the Convention in that the concept of “laws and customs of war” as used in section 8 of the War Crimes Act was so vague and uncertain in scope that he could not reasonably have been found to have had the criminal intent to be an accessory to their violation. He further claimed that the 1925 Geneva Gas Protocol and the 1949 Geneva Conventions, as considered relevant by the Court of Appeal, had become a dead letter in the light of the use of weapons of mass destruction, nuclear in particular, and the widespread use of other indiscriminate weapons such as incendiary bombs and napalm (which he described as “chemical weapons”) during the Second World War (1939-45), the Korean War (1950-53) and the Vietnam War (1959-75). The 1925 Geneva Gas Protocol, moreover, had lost its force, or at the very least could no longer be seen as proof of the existence of customary law given widespread State practice to contrary effect. 16.     The Procurator General ( Procureur-Generaal ) at the Supreme Court submitted an advisory opinion on 18 November 2008. He considered the Court of Appeal's reference to general international law an error which the Supreme Court could itself correct ex officio : it was sufficient to refer to the 1925 Geneva Gas Protocol, to the common Article 3 of the 1949 Geneva Conventions, and (in relation to the second charge) to Article 147 of the fourth Geneva Convention, all of which had been relied on by the Court of Appeal as setting out the applicable substantive standards. 17.     The applicant submitted a response to the Procurator General's opinion on 27 November 2008, as permitted by Article 439 § 5 of the Code of Criminal Procedure ( Wetboek van Strafvordering ). He argued, among other things, that Saddam Hussein and Ali Hassan al-Majid al-Tikriti, whose crimes he had supposedly aided and abetted, had at the time been members of the government of a sovereign State (one of them its Head of State) and for that reason protected by that State's sovereign immunity. Since the Dutch courts had no jurisdiction over them, it followed that they were not entitled to try him as their accessory either. 18.     On 30 June 2009 the Supreme Court gave judgment dismissing the appeal on points of law. It found that section 3 of the War Crimes Act conferred universal jurisdiction on Dutch courts in respect of the crimes set out in section 8 of that Act. In response to the applicant's complaint going to the supposed vagueness of the concept of “laws and customs of war” as used in section 8 of the War Crimes Act, it held as follows: “Contrary to the argument made in the point of appeal ( middel ), section 8 of the War Crimes Act is not contrary to the 'requirement of specificity' ( bepaaldheidsgebod ) contained in the statutory and Convention provisions relied upon. In the light, among other things, of the nature of its subject-matter, consisting of the setting of penal sanctions on the severest indictable offences which originate in a common legal consciousness – whether it be set out in laws and treaties or not –, the norm formulated in section 8 of the War Crimes Act makes it clear enough what behaviour will carry a penal sanction and sufficiently enables the suspect to adjust his behaviour accordingly, even though the nature and content of this provision inevitably entail a certain vagueness in the description of the crime ( een zekere vaagheid in de delictsomschrijving ).” B.     Relevant domestic and international law 1.     Relevant domestic law 19.     The relevant provisions of domestic law, in the versions applicable and applied in the applicant's case, read as follows: (a)     The Code of Criminal Procedure Article 439 “... 5.     Within two weeks from the transmission of the copy of the advisory opinion (of the Procurator General) the accused's counsel ... may submit his written comments thereon to the Supreme Court.” (b)     The Criminal Code Article 48   “The following persons are liable as accessories ( medeplichtigen ) to an indictable offence ( misdrijf ): 1.     those who intentionally assist in the commission of the indictable offence; 2.     those who intentionally provide the opportunity, means or information necessary to commit the indictable offence.” Article 49 “1.     In the case of complicity as an accessory, the maximum of the principal penalties ( hoofdstraffen ) prescribed for the indictable offence shall be reduced by one third. 2.     In the case of an indictable offence carrying a sentence of life imprisonment, a term of imprisonment not exceeding fifteen years shall be imposed. 3.     The additional penalties ( bijkomende straffen ) for complicity as an accessory shall be the same as for the indictable offence itself. 4.     Only those acts that were intentionally facilitated or promoted by the accessory ( die de medeplichtige opzettelijk heeft gemakkelijk gemaakt of bevorderd ), and the consequences of such acts, shall be taken into consideration in sentencing.” Article 57 “1.     In the case of a concurrence of criminal acts which must be considered as separate and which constitute more than one indictable offence carrying equivalent principal penalties ( gelijksoortige hoofdstraffen ), a single sentence shall be imposed. 2.     The maximum sentence shall be the total of the maximum penalties prescribed for the acts; however, in the case of imprisonment and penal detention ( hechtenis ), the sentence may not exceed the maximum of the most severe penalty by more than one third.” (c)     The War Crimes Act Section 1 “1.     The provisions of the present Act shall apply to crimes that are committed in time of war or that are criminal only in time of war, as set out in: ...   3 o     sections 4-9 of the present Act; ... 2.     In the case of an armed conflict that cannot be described as war and in which the Netherlands is involved either for the purpose of individual or collective self-defence or to restore international order and security, sections 4-9 shall apply by analogy and We [i.e. the Crown; that is the Monarch together with the responsible Minister] may determine by order in council ( algemene maatregel van bestuur ) that the other provisions of the present Act shall apply in whole or in part. 3.     The expression 'war' shall be understood to include civil war.” Section 3 “Without prejudice to the relevant provisions of the Criminal Code and the Military Criminal Code ( Wetboek van Militair Strafrecht ), Dutch criminal law shall apply to: 1 o     anyone who commits the indictable offence set out in [section] 8 outside the Realm in Europe; ... 4 o     any Netherlands national who commits an indictable offence as referred to in section 1 outside the Realm in Europe.” Section 8 “1.     Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years ... 2.     A term of imprisonment not exceeding fifteen years ... shall be imposed: 1 o     if the criminal act is liable to result in someone else's death or cause them severe bodily injury; 2 o     if the criminal act involves inhuman treatment; 3 o     if the criminal act involves forcing someone else to do something, not to do something or suffer something to happen; 4 o     if the criminal act involves looting. 3.     Life imprisonment or a temporary term of imprisonment not exceeding twenty years ... shall be imposed: 1 o     if the criminal act results in someone else's death or causes them severe bodily injury or involves rape; 2 o     if the criminal act involves violence by a plurality of persons acting in concert ( geweldpleging met verenigde krachten ) against one or more persons or violence against a dead, sick or injured person; 3 o     if the criminal act involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to someone else in whole or in part; 4 o     if the criminal act set out under 3 o or 4 o of the preceding paragraph is committed by a plurality of persons acting in concert; 5 o     if the criminal act is an expression of a policy of systematic terror or unlawful action ( wederrechtelijk optreden ) against the entire population or a particular group thereof; 6 o     if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party; 7 o     if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party.” (d)     The International Crimes Act 20.     The International Crimes Act ( Wet internationale misdrijven ) entered into force on 1 October 2003, replacing the War Crimes Act and the Genocide Treaty (Implementation) Act ( Uitvoeringswet Genocideverdrag ). In relevant part, it provides as follows: Section 4 “1.     Anyone who commits one of the following acts, if committed as a part of a widespread or systematic attack directed against a civilian population, in the knowledge that it is part of such attack, shall be found guilty of a crime against humanity and be liable to life imprisonment or to a term not exceeding thirty years ...: a.     wilful killing; b.     extermination; c.     enslavement; d.     deportation or forcible transfer of population; e.     imprisonment or other serious deprivation of physical liberty contrary to fundamental rules of international law; f.     torture; g.     rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable seriousness; h.     persecution of an identifiable group or collectivity on political grounds, because they belong to a particular race or a particular nationality, on ethnic, cultural or religious grounds, on grounds of gender or on other grounds which are universally recognised as impermissible under international law, in connection with an act referred to in this paragraph or any other crime set out in the present Act; i.     enforced disappearance of persons; j.     apartheid; k.     other inhumane acts of a comparable nature deliberately causing serious suffering or serious bodily injury or harm to mental or physical health. ...” Section 5 “1.     Anyone who, in an international armed conflict, commits one of the serious violations of the Geneva Conventions, namely the following acts if committed against persons protected by the said Conventions: a.     wilful killing; b.   torture or inhuman treatment, including biological experiments; c.     wilfully causing great suffering or serious bodily injury or harm to health; d.     large-scale deliberate and unlawful destruction and appropriation of property in the absence of military necessity; e.     compelling a prisoner of war or other protected person to serve in the armed forces of a hostile power; f.     deliberately denying a prisoner or war or other protected person the right to a fair trial in accordance with the law; g.     unlawful deportation and transfer or unlawful confinement; or h.     taking hostages shall be liable to life imprisonment or to a term not exceeding thirty years ... ... 5.     Anyone who, in an international armed conflict, commits one of the following acts: a.     deliberately directing attacks against civilian objects, that is to say objects which are not military objectives; b.     deliberately initiating an attack knowing that such an attack will cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and serious damage to the natural environment, and that it will clearly be excessive in relation to the concrete and direct overall military advantage anticipated; c.     attacks or bombing, by whatever means, of towns, villages, dwellings or buildings which are not being defended and are not military targets; d.     the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; e.     declaring rights and actions of nationals of a hostile party to be abolished, suspended, or inadmissible in a court of law; f.     compelling of nationals of a hostile party to take part in hostile acts directed against their own country, even if before the beginning of the war they were in the service of the belligerent party; g.     the use of poisoned weapons; h.     the use of asphyxiating, poisonous or other gases and other similar liquids, materials or devices; i.     the use of bullets which easily expand or flatten or widen in the human body, such as bullets with a hard jacket which leaves the core partially exposed or is incised; j.     outrages ( wandaden ) upon personal dignity, in particular humiliating and degrading treatment; k.     taking advantage of the location of a civilian or other protected person to secure particular points, areas or forces against military operations; l.     deliberately making use of the starvation of civilians as a method of waging war by denying them objects which are indispensable to their survival, including deliberately impeding the supply of aid goods as provided for in the Geneva Conventions; m.     deliberately directing attacks against the civilian population as such or individual civilians who are not directly participating in hostilities; n.     deliberately directing attacks against buildings, materiel, medical units and transport as well as personnel making use in accordance with international law of the emblems of the Geneva Conventions; o.     deliberately directing attacks against personnel, installations, materiel, units or vehicles involved in humanitarian aid or peace missions in accordance with the Charter of the United Nations, as long as they are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict; p.     deliberately directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, such buildings not being military objectives; q.     pillaging of a town or a place, even if taken in an attack; r.     conscripting or enlisting into military service in the national armed forces or groups children under the age of fifteen or using them for active participation in hostilities; s.     denying quarter; t.     destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict, shall be liable to a term of imprisonment not exceeding fifteen years ... 6.     If an act as set out in ... the fifth paragraph: a.     results in a person’s death or causes them severe bodily injury or involves rape; b.     involves violence by a plurality of persons acting in concert ( geweldpleging in vereniging ) against one or more persons or violence against a dead, sick or injured person; c.     involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to a person in whole or in part; d.     involves a plurality of persons acting in concert forcing someone else to do something, not to do something or suffer something to happen; e.     involves a plurality of persons acting in concert pillaging a town or a place, even if taken in an attack; f.     involves the breaking of a promise or the breaking of an agreement entered into as such with the adversary; or g.     involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party the person found guilty shall be liable to life imprisonment or to a term not exceeding thirty years ...” Section 6 1.     Anyone who, in a non-international armed conflict, commits a violation of the common Article 3 of the Geneva Conventions, that is to say the commission against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, of any one of the following acts: a.     violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b.     taking of hostages; c.     outrages upon personal dignity, in particular humiliating and degrading treatment; d.     the passing of sentences and the carrying out of executions without prior judgment pronounced by a lawfully constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; shall be liable to life imprisonment or to a term not exceeding thirty years ... 2.     Anyone who, in a non-international armed conflict, commits one of the following acts: a.     rape, sexual slavery, enforced prostitution, enforced sterilisation, or any other form of sexual violence that can be deemed equally serious as a serious violation of the Geneva Conventions; b.     forced pregnancy; c.     subjecting persons who are in the power of an adversary to physical mutilation or medical or scientific experiments, whatever their nature, not justified by medical or dental treatment of the person concerned or his treatment in hospital, nor carried out in his interest, and which result in death or can seriously endanger the health of that person or persons; or d.     treacherously killing or wounding persons who belong to the hostile nation or army; shall be liable to life imprisonment or to a term not exceeding thirty years ... 3.     Anyone who, in a non-international armed conflict, commits one of the following acts: a.     deliberately directing attacks against the civilian population as such or against individual civilians who are not participating directly in hostilities; b.     deliberately directing attacks against buildings, materiel, medical units and transport, as well as personnel making use in accordance with international law of the emblems of the Geneva Convention [i.e. the Red Cross, the Red Crescent and the Red Crystal]; c.     deliberately directing attacks against personnel, installations, materiel, units or vehicles involved in humanitarian assistance or peace missions in accordance with the Charter of the United Nations, as long as these are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict; d.     deliberately directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, such buildings not being military objectives; e.     pillaging of a town or a place, even if taken in an attack; f.     conscripting or enlisting into military service in the national armed forces or groups children under the age of fifteen or using them for active participation in hostilities; g.     denying quarter; h.     destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict; or i.     giving orders for the displacement of a civilian population for reasons connected with the conflict, not including reasons connected with the security of the civilians involved or in cases of urgent necessity because of cogent circumstances of the conflict, shall be liable to a term of imprisonment not exceeding fifteen years ... 4.     The sixth paragraph of section 5 shall apply by analogy to an act as referred to in the third paragraph.” (e)     Relevant domestic case-law 21.     In a decision of 11 November 1997 reported in the Nederlandse Jurisprudentie (Netherlands Law Reports) 1998 (no. 463), the Supreme Court held as follows: “5.2.     That it certainly was the Government's intention to comply in full with that treaty obligation [to criminalise all serious breaches of the four 1949 Geneva Conventions] is apparent from, among other things, the parliamentary history of that Act, in particular from the Explanatory Memorandum ( Memorie van Toelichting ) and the Memorandum in Reply ( Memorie van Antwoord ) pertaining to the Bill in question, which respectively include the following passages: 'When another power that is a party to the violated Convention does not request the transfer ( overlevering ) of a prisoner of war who is in the hands of the Netherlands, it should be possible for him to be tried by a Dutch court, even though the indictable offence may have been committed abroad, and even if the criminal act has not been committed against a Dutch national or harms no Dutch interest.' and 'The provision enacted in section 3(1) grants the Dutch courts jurisdiction to try war crimes, regardless of by whom and where they have been committed, that is to say also in those cases in which the indictable offence has been committed by a non-Dutch national outside the Netherlands in a war to which our country is not a party. It is rightly pointed out in the Provisional Report ( Voorlopig Verslag ) that this provision is to be seen as an application of the so-called principle of universality.' 5.3.     In view of the finding contained in paragraph 5.2 above, a reasonable interpretation of the law, in accordance with the legislature's intention to comply in full with the treaty obligations entered into by the Netherlands, makes it necessary to understand section 1 of the War Crimes Act – despite its, to that extent, opaque wording – in such a way that the limitations comprised in subsections 1, 2 and 3 respectively of section 1 of the War Crimes Act have no bearing on sections 8 and 9, and to that extent, not on section 3 ... either.” 22.     Similar rulings have appeared since this decision in other decisions and judgments of Dutch courts, including a judgment ( Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BC7418) given by the Supreme Court on 8 July 2008, while the present case was pending before it. 2.     Relevant international law and practice (a)     The 1925 Geneva Gas Protocol 23.     The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (signed at Geneva on 17 June 1925), better known as the 1925 Geneva Gas Protocol, entered into force on 8 February 1928. It reads as follows: “THE UNDERSIGNED PLENIPOTENTIARIES, in the name of their respective Governments: Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilised world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations; DECLARE: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration. The High Contracting Parties will exert every effort to induce other States to accede to the present Protocol. Such accession will be notified to the Government of the French Republic, and by the latter to all signatory and acceding Powers, and will take effect on the date of the notification by the Government of the French Republic. The present Protocol, of which the French and English texts are both authentic, shall be ratified as soon as possible. It shall bear today's date. The ratification of the present Protocol shall be addressed to the Government of the French Republic, which will at once notify the deposit of such ratification to each of the signatory and acceding Powers. The instruments of ratification of and accession to the present Protocol will remain deposited in the archives of the Government of the French Republic. The present Protocol will come into force for each signatory Power as from the date of deposit of its ratification, and, from that moment, each Power will be bound as regards other Powers which have already deposited their ratifications.” 24.     Among the earliest States to agree to be bound by this Protocol were Iran, which acceded to it (as the Imperial State of Persia) on 5 November 1929; Iraq, which acceded to it (as the Kingdom of Iraq) on 8 September 1931; and the Kingdom of the Netherlands, which ratified it on 31 October 1930. All three are still parties. 25.     Other States have followed suit throughout the second half of the twentieth century and more recently still. Among them are the United States of America (which ratified the Protocol in 1975), Vietnam (which acceded to it in 1980) and the Democratic People's Republic of Korea and the Republic of Korea (which acceded to it on the same day, 4 January 1989). The most recent are Ukraine (2003), Serbia and Croatia (both 2006), Slovenia (2008) and Costa Rica (2009). To date, more than one hundred and thirty States have ratified or acceded or declared succession to this Protocol. 26.     The Kingdom of the Netherlands and Iraq were among those States which, in ratifying or acceding to the Protocol, entered a reservation making its binding force in war conditional on reciprocal application by the enemy. The Kingdom of the Netherlands withdrew its reservation on 17 July 1995. Other States which entered similar reservations to the Protocol but have since withdrawn them are Ireland (1972), Australia (1986), New Zealand (1989), Czechoslovakia (1990, binding its successor States), Mongolia (1990), Bulgaria (1991), Chile (1991), Romania (1991), Spain (1992), France (1996), South Africa (1996), Belgium (1997), Canada (1999), and Russia (2001). (b)     The Charter of the International Military Tribunal 27.     The Charter of the International Military Tribunal (better known as the “Nuremberg Tribunal”) was annexed to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) of 8 December 1945. In the relevant part, it reads as follows: Article 6 “... The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: a.     Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; b.     War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment