[Blog post] Accountability in The Hague: Recent developments in Dutch core international crimes cases regarding the Syrian civil war

In a new blog post for international law blog EJIL: Talk!, Asser Institute intern Giel Verhagen discusses recent developments in Dutch core international crime cases from the Syrian civil war. Despite a limited form of universal jurisdiction, the Dutch government has made significant efforts to convict those responsible for core international crimes. An expansive interpretation of the legal framework results in innovative charges.

A month ago, the Dutch War Crimes Unit announced big news: for the first time in the Netherlands, an individual will be prosecuted for a crime committed against the Yazidis (see also here). The recent focus of the Dutch Public Prosecutor on possible crimes committed during the Syrian Civil War has already resulted in four convictions and at least four additional suspects have been accused of a core international crime.

The legal framework in the Netherlands regarding the prosecution of core international crimes, as outlined in the International Crimes Act (Wet Internationale Misdrijven), allows for limited universal jurisdiction. Article 2 of the Act determines that a Dutch court can prosecute solely if a Dutch national has committed a core international crime, if an individual has committed a core international crime against a Dutch national or if an individual has committed a core international crime and is now on Dutch territory. Despite this limited form of universal jurisdiction, the Dutch government has made significant efforts to convict those allegedly responsible for core international crimes.

Expansive interpretation
Remarkably, under Article 1(4) of this Act, core international crimes can also be equated to certain ordinary crimes, if this ordinary crime has been carried out with the intent to commit core international crimes. This expansive interpretation can result in innovative charges, such as participation in a criminal organisation aimed at committing war crimes, which has a maximum penalty of 10 years of imprisonment. Only the so-called Islamic State (ISIL) has previously been confirmed to be an organisation of such nature (see the Yousra L. case).

The Public Prosecutor successfully claimed that ISIL was a criminal organisation between 2012 and 2019. The court also held that ISIL aimed to commit the war crime of murder as well as outrages upon personal dignity in a non-international armed conflict in Syria and Iraq during that period. However, neither active participation by the accused in these war crimes nor the intent for the specific crimes carried out by the criminal organisation is required.

The court found that the accused was part of ISIL and had made an active contribution to the organisation by frequently disseminating ISIL propaganda. In this way, she ‘… transcended the role of mere supporter and actually started participating …’ and was thus successfully charged with this crime (see para. 5.4.5). Critics have claimed that this threshold of ‘unconditional intent’ for participating in a criminal organisation is very low, in particular, due to the interpretation that self-identification within an organisation could also be used as evidence for participation. Nevertheless, this charge was put forward by the Dutch Public Prosecutor in two of the ongoing cases analysed below too.

Ongoing cases: A diverse set of crimes charged
In May 2022, the Syrian national Mustafa A. was arrested in the Netherlands and suspected of war crimes, crimes against humanity as well as participation in a criminal organisation with the intent to commit war crimes. During the Syrian Civil War, he joined Liwa al-Quds, a militia that supported the regime. A. was allegedly involved in the arrest and detention of a civilian in January 2013, during which the detainee was abused. The Public Prosecutor presumably claims that this conduct can be considered a war crime. Later, the detained individual was brought to a prison of the intelligence service of the Syrian Air Force, where he was allegedly tortured. According to the Public Prosecutor, pro-Assad militias such as Liwa al-Quds played an important role in the ‘… widespread and systematic attack on the civilian population. For example, the militia was deployed to crush demonstrations by civilians and to arrest civilians.’

This language clearly refers to crimes against humanity and its chapeau element. The accused does not deny he was a member of Liwa al-Quds, yet he claims he only fought against terrorism and tried to protect his family. As a result of the character of the conduct of Liwa al-Quds and the role the militia played for the Syrian regime, however, the Public Prosecutor has cumulatively charged the accused with participation in a criminal organisation that is aimed at committing core international crimes.

Criminal organisation
At the beginning of this year, another Syrian man was arrested. Ayham al S. has been accused of being the chief of security for Jabhat al-Nusra and ISIL in Yarmouk, a suburb of Damascus, between 2015 and 2018 (for a German core international crime case regarding Yarmouk, see here). The Public Prosecutor alleges that from this role, he contributed to war crimes committed by ISIL. Therefore, he is charged with participation in a criminal organisation that is aimed at committing core international crimes. The security service of ISIL maintained public order and the accused was allegedly responsible for making arrests. Furthermore, he is cumulatively charged with participation in two terrorist organisations.

The Public Prosecutor aims to punish the accused more heavily because of his high position within ISIL and Jabhat al-Nusra. Human rights investigators claim S. also has various acts of murder, kidnapping and torture on his conscience. However, these crimes have not been individually charged against the accused, likely due to a lack of credible battlefield evidence, which is often difficult to collect.

‘An object without rights’
Lastly, a month ago, two Dutch women were accused of committing a core international crime. They had been repatriated to the Netherlands in November 2022 alongside ten other women and 28 children after a Dutch court order. All women have been accused of participating in a terrorist organisation, namely ISIL. One of the suspects, Hasna A., allegedly used a Yazidi woman as a slave in 2015, which The Public Prosecutor views as enslavement as a crime against humanity. As mentioned above, this is the first time that an individual in the Netherlands has been charged with a crime committed against the Yazidis. Several witnesses have reportedly confirmed the crimes of the accused, testifying that A. forced the Yazidi slave to work for hours and used her as an ‘object without rights’, according to the Public Prosecutor. Additionally, another woman who has been repatriated, called Krista van T., is accused of pillaging as a war crime. T. and her husband allegedly lived in two houses in Syria after she had joined ISIL, which the previous owners had left (or the previous owners had died). The Public Prosecutor has obtained evidence through the text messages of the accused while she was in Syria in which she mentioned that she ‘… took the house from an infidel.’

The way forward
These cases in the Netherlands are part of a larger European development towards the prosecution of core international crimes committed during the Syrian Civil War in national courts. Several countries have increased their efforts in prosecuting core international crimes, resulting in increased  interaction between domestic jurisprudence. For instance, the war crime of outrage upon personal dignity has been charged several times, successfully as well as unsuccessfully, including in the Yousra L., Oussama A. and Ahmad al-Y. cases in the Netherlands (as well as in cases in other countries). Unlike what has been stated earlier, at the moment, not just former ISIL members are prosecuted in Europe. Crimes committed by the Syrian Regime are increasingly prosecuted in European courts, for example in cases against members of the intelligence services. Furthermore, the Dutch Public Prosecutor has recently also commenced cases concerning alleged crimes committed in Afghanistan and Suriname.

Sensible allocation of resources
In this way, the recent expansion of the Dutch War Crimes Unit already yields results in bringing cases to the courtroom. The limited universal jurisdiction proves to be beneficial, since the requirement of a Dutch link to the crime logically selects cases for the Public Prosecutor which can be realistically pursued in court. It also results in the sensible allocation of (still rather limited) resources. The possibility to equate ordinary crimes with international crimes and to cumulatively prosecute charges provides the Dutch Public Prosecutor with a broad legal framework. In comparison, charges of core international crimes more accurately reflect the conduct of the crimes committed, whereas many of the terrorism-related charges indicate passive conduct and preparatory acts (for an international comparison of terrorism charges, see here). Including charges of core international crimes thus creates more accurate and complete accountability regarding the crimes for which the perpetrator is responsible (see also here and here).

Relieved
The Yazidi community was relieved after the enslavement charge was announced. The suspect is charged with complicity in a crime against humanity rather than genocide, since the conduct of the accused does not meet the necessary requirements for a genocide charge (similar to some German cases). The first court case against a member of ISIL for genocide against Yazidis came to an end in Germany last year (alongside several counts of crimes against humanity). In the past, there has been significant criticism in the Netherlands concerning the lack of cases regarding the crimes committed against the Yazidis. For instance, another alleged Dutch ISIL member, Ojone I., has reportedly committed similar crimes against a Yazidi woman (but she fled the Kurdish camp al-Hol and has subsequently gone missing). Similarly, human rights investigators have alleged that there could have been more cases of individuals that committed core international crimes alongside the Syrian regime. The Dutch Police suspects other former members of the Liwa al-Quds militia are currently living in the Netherlands, although they have not been arrested yet. Therefore, it is likely that more cases are coming up in the near future.

Finally, after a long period of reluctance to repatriate ISIL members from Syria by the Dutch government, the victims of some of the gruesome crimes committed will have their day in court. It must be noted that the cases are still ongoing and other cases regarding crimes allegedly committed in Syria are still on appeal. Nevertheless, as the experience and jurisprudence for prosecuting core international crimes on the national level continues to grow, it will lead to more accountability for the crimes committed in Syria. 

About Giel Verhagen
Giel Verhagen is a legal intern at the T.M.C. Asser Instituut, working primarily on Global Counterterrorism Forum Projects. He holds an LLM from Tilburg University and an MSc from Leiden University. His research focuses on the interplay between international criminal law and terrorism, specifically in the Dutch context. Giel Verhagen is part of the research strand 'In the public interest: accountability of the state and the prosecution of crimes' , which examines i) the accountability of states - individually and collectively (for instance at the level of the United Nations or the European Union) - in light of public interest standards in the context of counter-terrorism; and ii) the prosecution of individuals for international and transnational crimes in the public interest. Moreover, to ensure both the accountability of the state and the prosecution of individuals, this strand will also investigate iii) the role of journalists, the (new) media, human rights NGOs and academics in protecting and promoting public interest standards.