Public Prosecutor v. Darko Knesevic

Court	Netherlands Supreme Court, Criminal Division, The Netherlands
Case number	3717
Decision title	Decision
Decision date	11 November 1997
Parties	Public Prosecutor Darko Knesevic
Categories	War crimes
Keywords	Former Yugoslavia; murder; universal jurisdiction; war crimes; Prijedor
Links	Decision

Summary

Darko Knesevic was born in Banja Luka (former Yugoslavia) on 10 October 1964. On 1 November 1995, the Officer of Justice of the District Court in Arnhem, the Netherlands, requested a preliminary inquiry into which legal authority was competent in the case against Knesevic. Knesevic was suspected of killing two Bosnian Muslims, threatening others and transferring them to a concentration camp, and attempting to rape two women, while he was part of an armed group serving as part of the Bosnian Serb militias that killed Bosnian Muslim civilians during the armed conflict in the former Yugoslavia (1992-1995).

The Supreme Court of the Netherlands (Hoge Raad), relying on the Geneva Conventions’ concept of universal jurisdiction, ruled that the Dutch military chambers could consider the case even though the alleged crimes were committed outside the Netherlands.

Procedural history

On 1 November 1995, the Officer of Justice in the district of Arnhem requested a preliminary legal inquiry into the legal authority and competence of the military chamber of the Arnhem District Court in the case against Bosnian Serb national Darko Knesevic. In the request, it was alleged that Knesevic killed two Bosnian Muslims, attempted to rape two women, and threatened other Bosnian Muslims who were subsequently transferred to a concentration camp. Knesevic was accused of having committed these crimes while being part of an armed group serving as part of the Bosnian Serb militias in the Prijedor area of Bosnia and Herzegovina in 1992.

On 1 December 1995, the Deputy Presiding Judge responsible for dealing with penal and military cases at the Arnhem District Court declared the request of the Officer of Justice for the opening of a preliminary legal inquiry non-receivable on the ground that the Netherlands had no criminal legal competence concerning the facts alleged in the request.

On 13 December 1995, the Officer of Justice appealed to a higher authority.

On 21 February 1996, the Arnhem District Court, military chamber, sitting in the matter of the appeal to a higher authority, annulled the decision of the Deputy Presiding Judge. The Court declared that the Dutch judge was legally empowered, and that the military judge under the provisions of Article 12 of the Wartimes Offences Act was competent to take account of the facts described in the Officer of Justice’s request. Accordingly, the Court dismissed the request of the Officer of Justice instituted on the 1 November 1995.

After an appeal on other grounds (Knesevic was not heard), the Supreme Court of the Netherlands annulled the District Court’s decision on 22 October 1996 and referred the case to the Arnhem Court of Appeal (military chamber) to decide on the appeal.

On 19 March 1997, the Arnhem Court of Appeal confirmed the decision of the Deputy Presiding Judge that the request of the Officer of Justice was not receivable. The Court concluded that the Dutch judge was competent to take account of the facts alleged in the Officer of Justice’s request. However, the Court determined that it was not the military judge pursuant to Article 12 of the Wartime Offences Act who was competent, but rather the ordinary criminal judge.

Knesevic appealed the decision as well as the Officer of Justice, who argued that the military judge was competent to hear the facts set out in the request.

Related developments

After the Supreme Court’s decision, the case was dropped due to a lack of evidence.

Core legal questions

Did the Court of Appeal err in ruling that the Dutch judge was legally competent to deal with the case? (para. 6.2)
Did the Court of Appeal err in determining that the military judge pursuant to Article 12 of the Wartime Offences Acts is incompetent to hear the facts set out in the Officer of Justice’s request to institute a preliminary judicial inquiry? (para. 7.1)

Specific legal rules and provisions

Geneva Convention IV, 1949

Article 3 - Conflicts not of an international character

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

Article 1 - Applicability of the Act
Article 3 - Applicability Dutch criminal law
Article 8 - Offences against the laws and customs of war
Article 9 - Offences against the laws and customs of war
Article 10
Article 12

Court's holding and analysis

On 11 November 1997, the Supreme Court of the Netherlands (Hoge Raad) ruled that the Arnhem Court of Appeal correctly determined that, with regard to the facts set out in the Officer of Justice’s request for a preliminary legal inquiry into the legal authority and competence of the military chamber of the Arnhem District Court, the Dutch judge is legally competent (paras. 6.4 – 6.5). Therefore, Knesevic could be tried by a Dutch judge for war crimes committed during the armed conflict in the former Yugoslavia, upholding the universal jurisdiction concept stemming from the Geneva Conventions.

Furthermore, the Court held that the military chambers were the competent forum to hear the case, and not the ordinary Dutch courts as the Court of Appeal ruled (paras. 7.3-7.4). However, the decision did not lead to dismissal of the judgment. The Court determined that the decision of the Court of Appeal confirming the Deputy Presiding Judge’s ruling that the Officer of Justice’s request was non-receivable ‘may stand because the aim intended by the Office of Justice with that request is achieved by the present decision of the Court of Appeal’. The Officer of Justice wanted to obtain an answer to the question concerning the legal competence of the Netherlands, and more in particular, the competence of the military judge. Since the Court of Appeal did answer that question, the Officer of Justice’s interests in his request ‘no longer exist and is replaced by the declaration of non-receivability [...]’ (para. 7.5).

Accordingly, the Court ruled that there were no grounds on which the disputed decision should be annulled and therefore rejected both appeals (para. 8.1).