Prosecutor-General of the Supreme Court v. Desiré Bouterse

Court	Supreme Court, The Netherlands
Case number	LJN: AB1471
Decision title	Judgment
Decision date	18 September 2001
Parties	Prosecutor-General of the Supreme Court Desiré Delano Bouterse (a.k.a. Dési Bouterse)
Categories	Torture
Keywords	Torture; (universal) jurisdiction; Suriname; retroactive effect; December murders; Moiwana massacre
Links	Judgment (in Dutch)
Other countries involved	Suriname

Summary

Desiré Bouterse, a Surinamese politician, was born on 13 October 1945. Bouterse led a coup d’état in 1980 and became the military leader of Suriname until 1987. Relatives of victims of the so-called December murders of 8 and 9 December 1982, when 15 opponents of the military regime headed by Bouterse were tortured and subsequently killed, brought a complaint against Bouterse in the Netherlands. On 18 September 2001, the Supreme Court of the Netherlands dismissed the action against Bouterse. The Court held that Bouterse could not be prosecuted because he was not connected in any way to the Netherlands. Moreover, the acts committed under the military dictatorship of Bouterse were not criminalised as such at the time they were committed.

Procedural history

During a trial in absentia on 20 November 2000, following a complaint of relatives of victims of the so-called “December murders” of 1982, the Court of Appeal of Amsterdam ordered the Amsterdam Public Prosecutor to prosecute Bouterse for alleged involvement in the December murders on the basis of universal jurisdiction.

The Court held that Bouterse could be prosecuted because the case concerned torture, which was already a crime subject to universal jurisdiction under customary international law in 1982. In addition, the Court held that Bouterse could be prosecuted on the basis of the Torture Convention.

The Prosecutor General at the Supreme Court instituted an appeal in cassation against the decision of the Court of Appeal in the interest of the uniform application of the law.

Related developments

In 2007, relatives of the victims succeeded in bringing proceedings before a military court against Bouterse and 24 accomplices for the 1982 December murders. Although Bouterse denied direct involvement in the murders, he accepted political responsibility and offered a public apology in March 2007.

In April 2008, a military court ruled that all suspects involved in the 1982 December murders had to stand trial, including Bouterse.

In November 2008, the trial of Bouterse began but faced repeated delays.

On 19 July 2010, Bouterse became the President of Suriname.

On 4 April 2012, about two months before the verdict in the trial, the National Assembly passed an amendment to extent the 1992 Amnesty Law to include the period during which the murders were committed. Therefore, amnesty was granted to Bouterse and the other 24 suspects for the 1982 December murders.

On 11 May 2012, the military court in charge of the case adjourned the trial of Bouterse until a constitutional court has reviewed the constitutionality of the new Amnesty Law. As there is not yet a constitutional court in Suriname and Bouterse himself would appoint the justices of this court, it is very unlikely that the trial will resume soon.

Legally relevant facts

Bouterse was the leader of the National Democratic Party (NDP) and the chairman of the Surinamese political group Megacombinatie. On 25 February 1980, Bouterse and 15 other men threw down the government of Henck Arron and established a military regime. During that regime, which lasted until November 1987, Bouterse was a de facto leader. The military regime was characterised by suppression on the freedom of expression and the freedom of assembly, corruption, and summary executions of political opponents. Bouterse, as military ruler at the time, has been regarded as the mastermind behind the December murders committed on 8 and 9 December 1982.

In addition to the December murders, theMoiwana massacre of 1986 could also be attributed to the regime of Bouterse. On 29 November 1986, during the Suriname Guerrilla War (1986–1990), an armed conflict between the military regime and the Surinamese Liberation Army, soldiers of the regime killed at least 39 villagers (mostly women and children) from Moiwana and burned down the village.

Core legal questions

Could Bouterse be prosecuted in the Netherlands for the 1982 December murders committed in Suriname?

Specific legal rules and provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 7 - No punishment without law

Torture Convention Implementation Act, 1989, the Netherlands [in Dutch only]:

Article 1
Article 2
Article 4
Article 5

The Constitution of the Kingdom of the Netherlands, 2008:

Article 16 - Legality principle
Article 94 - Prevailing force of binding treaties over domestic law

Court's holding and analysis

The Supreme Court of the Netherlands ruled that Bouterse could not be prosecuted in the Netherlands for the December murders. The Court primarily focused on the interpretation of the Torture Convention Implementation Act (Implementation Act).

The Court limited the scope of the Implementation Act. In particular, it stated that even though the Netherlands can prosecute both Dutch and foreign nationals under the Implementation Act for acts of torture committed anywhere in the world and against whomever, a connection with Dutch jurisdiction needs to be established (paras. 8.2-8.3). Such a connection could be established if the suspect or victim has Dutch nationality or is present in the Netherlands. Therefore, the Court rejected the application of universal jurisdiction in absentia because there was no direct link with the Dutch legal order as Bouterse was still in Suriname and none of the victims were Dutch nationals (para. 8.5).

The Court also examined the definition of torture in the Implementation Act in relation to the fact that the victims were killed. The Court held that murder only fell within the definition of torture if it was preceded or accompanied by acts of torture (para. 5.2).

Furthermore, the Court stated that prosecution of Bouterse was not possible because the crimes were committed in December 1982, while the Torture Convention came into force in 1987 and the Implementation Act in 1989. The application of the Torture Convention to acts committed before its adoption would violate the principle of legality established by Article 16 of the Dutch Constitution (para. 4.3.1).

As to the argument that customary international law criminalised torture at the time, the Court held that while binding treaties could prevail over domestic law pursuant to Article 94 of the Dutch Constitution, unwritten international law, such as customary international law, does not have the same status (paras. 4.4-4.6).

Further analysis

P. J. C. Schimmelpenninck van der Oije, ‘A Surinam Crime Before a Dutch Court: Post-Colonial Injustice or Universal Jurisdiction?’, Leiden Journal of International Law, June 2001, Vol. 14(2), pp. 455-476.

L. Zegveld, ‘The Bouterse Case’, Netherlands Yearbook of International Law, December 2001, Vol. 32, pp. 97-118.

L. A. N. M. Barnhoorn, ‘Netherlands Judicial Decisions Involving Questions of Public International Law, 1999–2000’, Netherlands Yearbook of International Law, December 2001, Vol. 32, pp. 233-327.

R. Rabinovitch, ‘Universal Jurisdiction In Abstentia’, Fordham International Law Journal, 2004, Vol. 28(2), pp. 500-530.

C. Ryngaert, ‘Universal Criminal Jurisdiction over Torture: a State of Affairs’ , K. U. Leuven Faculty of Law - Institute for International Law, August 2005, Working Paper No. 66 (revised), pp. 1-54.

A. Trapani, ‘Comparative Analysis of Prosecutions for Mass Atrocity Crimes in Canada, Netherlands, and Australia’, DOMAC, August 2009, pp. 33-37.