Public Prosecutor v. Abdullah Faqirzada

Court	Supreme Court of the Netherlands, Criminal Division, The Netherlands
Case number	09/03090
Decision title	Judgment
Decision date	8 November 2011
Parties	Public Prosecutor Abdullah Faqirzada
Categories	Crimes against humanity, Torture, War crimes
Keywords	Torture; crimes against humanity; universal jurisdiction; war crimes
Links	Supreme Court Judgment (in Dutch) Supreme Court Judgment (in English)
Other countries involved	Afghanistan

Summary

Abdoullah Faqirzada, an Afghan national born in 1950, was an officer of the Afghan security police force KhAD (Khadamat-e Etela'at-e Dawlati) in the period 1979-1989. This security police force was known for committing various human rights violations against anti-regime supporters. In 1994, Faqirzada left Afghanistan and went to the Netherlands where he applied for asylum but in vain and therefore stayed in the country illegally. In 2006, the Dutch authorities arrested him on the basis of the principle of universal jurisdiction. Between 4 and 15 June 2007, the District Court of The Hague tried him for committing international crimes (war crimes and crimes against humanity). He was acquitted in 2007 because there was insufficient evidence to prove that he was responsible for crimes committed by the security police force. The Court of Appeal and the Supreme Court also affirmed Faqirzada’s acquittal.

Procedural history

Abdullah Faqirzada was charged in the Netherlands with war crimes and crimes against humanity for alleged torture committed in the 1980s in Afghanistan. Throughout the 1980s, Faqirzada was a senior officer with the Afghan Military Intelligence Service, the KhAD.

On 25 June 2007, the District Court of The Hague acquitted Faqirzada of the two charges brought against him. First, Faqirzada was accused of being a (co)perpetrator in committing war crimes consisting of acts of violence, torture, and/or cruel and inhumane treatment against two persons. The Court stated that the defendant could have had knowledge of the crimes that had clearly taken place. However, the Court found insufficient evidence that Faqirzada was personally involved. According to the second charge, Faqirzada exercised ‘effective command and control’ over the persons committing the alleged war crimes. However, the Court held that it could not be established due to a lack of evidence that he had ‘superior responsibility’ (the decision in Dutch and in English).

The Advocate General filed an appeal at the Court of Appeal against the acquittal for ‘superior responsibility’ for war crimes. The appeal was contested by Faqirzada’s defence counsel.

On 16 July 2009, the Court of Appeal upheld the District Court’s decision by stating that it had not been proven legally and convincingly that Faqirzada committed acts of violence, torture, and cruel and inhumane treatment, or that he had ‘superior responsibility’ for the alleged war crimes (the decision in Dutch and in English).

Core legal questions

Did the Court of Appeal err in holding that Faqirzada had no ‘superior responsibility’ over the alleged war crimes'?

Specific legal rules and provisions

Wartime Offences Act, 1952, The Netherlands [in Dutch only]:

Section 8 (old) - Terms of imprisonment
Section 9 (old) - Sentence

Statute of the International Criminal Tribunal for the former Yugoslavia, 1993:

Article 7(3) - Individual criminal responsibility

Statute of the International Criminal Tribunal for Rwanda, 1994:

Article 6(3) - Individual Criminal Responsibility

Court's holding and analysis

The Supreme Court dismissed the grounds of appeal and upheld the Court of Appeal’s decision to acquit Faqirzada. In particular, the Court held that the Court of Appeal had correctly relied on international law provisions for interpreting the doctrines of ‘command responsibility’ and ‘effective control’ (para. 2.4.1). Moreover, it held that the both doctrines were correctly applied to the facts of the case by the Court of Appeal (paras. 2.6-2.7). The Court noted that for criminal liability in the form of command responsibility, it is required that the superior had ‘‘effective control’ over the subordinate who committed the offences’ (para. 2.4.2). In this regard, the Court affirmed that the Court of Appeal was correct in determining that Faqirzada was not in the position to halt the alleged crimes, or that he intentionally permitted his subordinates to commit them. Therefore, the Court affirmed the Court of Appeal’s conclusion that Faqirzada had no effective control over the subordinates who committed the offences, and accordingly, that he had no superior responsibility.