The Public Prosecutor v. Heshamuddin Hesam

Court	Supreme Court of the Netherlands, Criminal Division, The Netherlands
Case number	07/10063 (LJN: BG1476)
Decision title	Judgment
Decision date	8 July 2008
Parties	Public Prosecutor Heshamuddin Hesam
Categories	Torture, War crimes
Keywords	Torture; universal jurisdiction; war crimes
Links	Supreme Court Judgment (in Dutch) Supreme Court Judgment (in English)
Other countries involved	Afghanistan

Summary

The Afghani Heshamuddin (or Hesamuddin) Hesam applied for political asylum in the Netherlands in 1996, but this was refused due to suspicion of his involvement in torture and war crimes during the war in Afghanistan in the 1980’s. However, Hesam stayed in the Netherlands, and after investigations he was arrested in 2004. The Hague District Court convicted him for war crimes and torture committed by him as head of the military intelligence agency KhaD-e-Nezami (KhAD) and as superior for failing to prevent these crimes from being committed by his subordinates. He was sentenced to 12 years’ imprisonment. The Court of Appeal affirmed this decision. Consequently, Hesam appealed to the Supreme Court, arguing that the previous courts had erred in law on several points. The Supreme Court disagreed, however, and held that Dutch courts had jurisdiction over the crime, that prosecution was admissible, that the crimes were not time-barred (as Dutch law excludes war crimes from becoming so), and that the convictions had been in conformity with the law. Accordingly, the appeal was dismissed.

Procedural history

After criminal investigations started in 2003, Hesam was arrested in the village of Boskoop, the Netherlands, on 27 November 2004.

On 14 October 2005, he was sentenced to 12 years' imprisonment by the District Court of The Hague for war crimes and torture (in Dutch and in English). Hesam appealed against this decision, but on 29 January 2007, The Hague Court of Appeal affirmed the District Court’s judgment, again convicting Hesam as co-perpetrator of torture and of wilfully allowing a subordinate to commit war crimes (in Dutch and in English). Hesam was tried in parallel with Habibullah Jalalzoy.

Legally relevant facts

Heshamuddin Hesam was head of the Afghan military intelligence service, the KhAD and Deputy Minister of the Ministry of State Security (WAD) during the war with the Soviet Union in the 1980’s and the Afghan civil war, armed conflicts to which the KhAD was a party. In first instance – and upheld by the Court of Appeal – he was found guilty of having tortured, individually and together with KhAD-colleagues, prisoners in order to extract a confession and/or cause fear (by, inter alia, depriving them from sleep, applying electrical currents to their bodies, and putting them, almost naked, in the cold for days) in 1989-1990 and, as a superior, of war crimes by failing to prevent the torture of civilians (inter alia, cutting off fingers and putting civilians outside in the cold for days) by his subordinates during the civil war in 1985-1989 (para. 3).

After the Court of Appeal’s approval of the conviction, Hesam appealed to the Supreme Court on the following five grounds: (1) the Dutch courts do not have jurisdiction regarding the war crimes charges; (2) Hesam, as (former) official, enjoys functional immunity and, thus, cannot be prosecuted; (3) the war crimes charge has become time-barred; (4) the specifically mentioned victim in the war crimes charge was not entitled to protection under the laws of war; and (5) torture was not prohibited under the laws of war in 1985-1989 (paras. 6-10).

Core legal questions

Has the Court of Appeal erred in law in affirming the judgment convicting Hesam of torture and war crimes?

Specific legal rules and provisions

Geneva Convention (I), 1949:

Article 3 - Conflicts not of an international character

Wartime Offences Act, 1952, the Netherlands [in Dutch only] (replaced by the International Offences Act, 2003, the Netherlands):

Section 1(3)
Section 3(1)
Section 8
Section 9

Court's holding and analysis

On the outset, it should be noted that the (old) Wartime Offences Act (Wet Oorlogsstrafrecht), under Section 3(1), provides that Dutch courts can exercise universal jurisdiction over war crimes committed anywhere in the world.

Regarding the first ground of appeal, the Supreme Court remarked that Dutch courts, pursuant to the Wartime Offences Act, do have jurisdiction over crimes committed in violation of common Article 3 of the 1949 Geneva Conventions (para. 6.2), regardless whether the crimes were committed in an international or non-international (internal) armed conflict (para. 6.6; see also Section 1(3) of the Wartime Offences Act, which states that ‘war is deemed to include civil war’). Similarly, the Wartime Offences Act does not give entitlement to functional immunity (immunity based on an official position) to any perpetrator breaching its provisions (para. 7.2). With regard to the argument that prosecution of the war crime charge has become time-barred, the Court pointed out that Section 10(2) of the Act explicitly provides that the time limits ex Articles 70 and 76 of the Dutch Penal Code do not apply in case of perpetration of the crimes mentioned in the Wartime Offences Act (which, contrary to what the defence counsel argued, does include torture as war crime – see para. 8.2). The fourth ground of appeal, namely that the victim was not entitled to protection under the 1949 Geneva Conventions because he was not a combatant, was dismissed as well; evidently, the Fourth Geneva Convention specifically protects civilians (para. 9.2). The final ground of appeal was also dismissed: the 1949 Geneva Conventions already prohibited torture under common Article 3, also in internal armed conflicts (civil wars); hence, the torture practice in the 1980’s was a clear violation of the 1949 Geneva Conventions (para. 10.2).

Therefore, as ‘none of the grounds of appeal can result in cassation and the Supreme Court also sees no grounds on which it could set aside the disputed judgment ex proprio motu, the appeal must be dismissed’ (para. 12).

Instruments cited

Geneva Convention (I), 1949.
Geneva Convention (II), 1949.
Geneva Convention (III), 1949.
Geneva Convention (IV), 1949.
Wartimes Offences Act, 1952, the Netherlands [in Dutch only] (replaced by the International Offences Act, 2003, the Netherlands).

Related cases

Together with Hesam, two other former KHAD members were also identified during the investigations in the Netherlands: Habibullah Jalalzoy and Abdullah Faqirzada.

Jalalzoy was prosecuted and convicted in parallel with Hesam, see: Public Prosecutor v. Habibullah Jalalzoy.

Faqirzada, however, was acquitted from all charges in 2011, see: Public Prosecutor v. Abdullah Faqirzada.