Public Prosecutor v. Joseph Mpambara

Court	Court of Appeal of The Hague, The Netherlands
Case number	09-750007-07
Decision title	Judgment
Decision date	17 December 2007
Parties	Public Prosecutor Joseph Mpambara
Categories	Genocide, War crimes
Keywords	child, hostage, jurisdiction, Murder, Non-international armed conflict, rape, torture, war crimes
Links	Judgment
Other countries involved	Rwanda

Summary

In 1994, an armed conflict between the Rwandese government forces and the Rwandese Patriotic Front and the genocide perpetrated against the Tutsis claimed the lives of hundreds of thousands of citizens in Rwanda and the elimination of approximately 75% of the Tutsi population.

Joseph Mpambara was a member of the interahamwe militia who fled Rwanda for Kenya and finally the Netherlands after 1994. He is charged with having murder, rape, kidnapping, hostage taking and torture against several Tutsi individuals including young children who were hacked with machetes after being forced out of an ambulance with their mother. Since the Accused is a non-Dutch national and the crimes with which he is charged did not occur on Dutch territory and did not implicate Dutch nationals in any way, the question of jurisdiction arose.

In the present decision, the Court of Appeal of The Hague confirmed the decision of the District Court of The Hague that the Dutch courts have no jurisdiction over the crime of genocide allegedly commited by the Accused. This does not, however, bar prosecution of the Accused for war crimes and torture.

Procedural history

The Accused, Joseph Mpambara, was a member of the interahamwe militia in Rwanda in 1994. He subsequently fled to Kenya and in November 1998, he sought asylum in The Netherlands.

In June/July 2006, the Public Prosecutor contacted the Prosecutor of the International Criminal Tribunal for Rwanda as to the possibility of investigating the criminal offences allegedly committed by the Accused in Rwanda.

Following the arrest of the Accused in Amsterdam on 7 August 2006, on 3 October 2006, the Prosecutor of the ICTR requested the Dutch government to accept the transfer of the case of the Accused for national prosecution. This request was accepted on 27 November 2006.

In pro forma hearings on 11, 16 and 17 May 2007, the Public Prosecutor requested the District Court of The Hague to determine whether the Public Prosecutor may institute proceedings for genocide.

On 24 July 2007, in an interlocutory decision, the District Court of The Hague determined that Dutch courts do not have jurisdiction over the crime of genocide allegedly committed by the Accused.

This decision was appealed.

Related developments

On 21 October 2008, the Supreme Court of The Netherlands confirmed the decision of the Court of Appeal. On 13 November 2008, the Accused’s trial commenced for the war crimes charges, and in the alternative, for torture committed in Rwanda.

On 23 March 2009, the District Court of The Hague convicted the Accused of complicity in torture committed several times and while death ensued. He was acquitted on the remaining counts of murder, rape, and kidnapping. He was sentenced to 20 years’ imprisonment.

Both the Prosecution and the Defense appealed.

On 7 July 2011, the Court of Appeal of The Hague upheld the conviction of the Accused with respect to the counts of torture. It additionally found that the count of hostage taking was also proven. It requalified the basis for the Accused’s conviction as co-participation in violating the laws and customs and war. The Accused was sentenced to life imprisonment.

On 26 November 2013, the Supreme Court confirmed this decision, thereby rendering Mpambara's life sentence final.

Legally relevant facts

The Accused was a member of the interahamwe militia, which operated in Rwanda in 1994 to perpetrate a number of attacks against the Tutsi population.

In particular, the Accused is alleged to have killed a number of women and children who were transported by ambulance; killing and/or inflicting serious physical and/or mental injury to a large numbe rof people who fled to the Seventh-Day Adventists Mugonero complex, taking hostage, humiliating and threatening a family; raping and attempting to rape a number of women; kidnapping and murdering the grandchildren of a family (paras. 2-3).

Core legal questions

Can maintaining the international legal order be regarded as a national interest for the purposes of establishing jurisdiction under Section 3(2) of the Act on Criminal Law in Time of War?
Can the Dutch courts exercise indirect jurisdiction on the basis of Article 4a of the Dutch Criminal Code due to the referral of the case of the Accused by the International Criminal Tribunal for Rwanda?

Specific legal rules and provisions

Section 3(2) of the Act on Criminal Law in Time of War (Wet Oorlogsstrafrecht).
Article 4a of the Dutch Criminal Code.

Court's holding and analysis

Affirming the decision of the District Court, the Appellate Court states that Section 3(2) of the Act on Criminal Law in Time of War cannot be interpreted so as to allow for maintenance of the international legal order to be regarded as a national interest. To do so would be tantamount to creating universal jurisdiction. This broadening of jurisdiction and the many jurisdictional conflicts which would ensue from such an interpretation of the term ‘Dutch interest’ could not, in reason, have been the intention of the legislator (para. 11).

Pursuant to Article 4a of the Dutch Criminal Code, the Code is applicable to anyone against whom prosecution was referred to the Netherlands on the condition that the referral was made by a foreign State; that State had jurisdiction over the Accused, and there exists a convention which confers upon the Netherlands the competence to prosecute the Accused (para. 15). The Court of Appeal reached the same conclusion as the District Court that all of the requirements of this Article were not met and were therefore not grounds for the exercise of jurisdiction by the Dutch Courts. However, the Court of Appeal differed from the District Court in that it did not consider that the International Criminal Tribunal for Rwanda (ICTR) could be equated to a ‘foreign State’ for the purposes of applying the provision (para. 16).

The Court of Appeal also examined whether the correspondence between the Public Prosecutor of The Netherlands and the Prosecutor of the ICTR could be regarded as a sort of ‘mini-convention’ conferring a legal obligation on the Dutch courts to prosecute the Accused for the purposes of Article 4(a) of the Dutch Criminal Code. It concluded in the affirmative that a form-free convention was indeed entered into but that it is not a convention in the sense of Article 4(a) (para. 29).

The Public Prosecutor is therefore barred from prosecuting the Accused for genocide (para. 31).

Further analysis

L. van den Herik, 'A Quest for Jurisdiction and an Appropriate Definition of Crime: Mpambara before the Dutch Courts', 2009;
H. van der Wilt, 'Universal Jurisdiction Under Attack: An Assessment of the African Misgivings of International Criminal Justice, as Administered by Western States';
L. Zegveld & J. Handemakker, 'Universal Jurisdiction: State of Affairs and Ways Ahead', 2012.

Instruments cited

Charter of the United Nations of 26 June 1945.
Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 227, 9 December 1948, entered into force 12 January 1951.
Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), UN Doc S/RES/955, UN Security Council, 1994.
Criminal Code of the Kingdom of the Netherlands (as on 24 August 2007), adopted on 15 April 1886 (in Dutch only).
Act on Criminal Law in Time of War (Wet Oorlogsstrafrecht) (in Dutch only).

Related cases

Supreme Court of The Netherlands, Public Prosecutor v. Joseph Mpambara, Case No. 09-750007-07, Judgment, 21 October 2008.
District Court of The Hague, Public Prosecutor v. Joseph Mpambara, Case Nos. 09/750009-06 and 09/750007-07, Judgment, 23 September 2009.
Court of Appeal of The Hague, Public Prosecutor v. Joseph Mpambara, 7 July 2011 (in Dutch only).