Public Prosecutor v. Joseph Mpambara
| Court |
Supreme Court of The Netherlands, The Netherlands |
| Case number |
09-750007-07 |
| Decision title |
Judgment |
| Decision date |
21 October 2008 |
| Parties |
- Public Prosecutor
- Joseph Mpambara
|
| Categories |
Genocide, War crimes |
| Keywords |
child, hostage, jurisdiction, Murder, Non-international armed conflict, rape, torture, war crimes |
| Links |
|
| Other countries involved |
|
back to topSummary
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 Supreme Court of The Netherlands rejected the appeal of the Public Prosecutor against the earlier decision of the Court of Appeal of The Hague. The Supreme Court confirmed that Dutch Courts have no jurisdiction over the crime of genocide allegedly committed by the Accused. This does not, however, bar prosecution of the Accused for war crimes and torture.
back to topProcedural 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.
On 17 December 2007, the Court of Appeal of The Hague upheld the decision of the District Court and found that the Public Prosecutor was barred from proceeding against the Accused for charges of genocide due to a lack of jurisdiction.
The Public Prosecutor appealed the decision.
back to topRelated developments
On 13 November 2008, the Accused’s trial commenced for war crimes, 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.
back to topLegally 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, judgment of the Court of Appeal).
back to topCore legal questions
- Can the Prosecutor of the International Criminal Tribunal for Rwanda’s request to the Dutch authorities to take over prosecution of the Accused satisfy the elements of Article 4a of the Dutch Criminal Code for the purposes of establishing indirect jurisdiction?
back to topSpecific legal rules and provisions
- Article 4a of the Dutch Criminal Code.
back to topCourt's holding and analysis
Pursuant to Article 4a of the Dutch Criminal Code, indirect jurisdiction exists where a foreign State requests The Netherlands to take over prosecution of a criminal case and a treaty exists between the foreign State and The Netherlands foreseeing prosecution in The Netherlands. The request by the Prosecutor of the International Criminal Tribunal for Rwanda to the Government of The Netherlands does not meet the requirement of a signed treaty with a foreign State.
The Public Prosecutor is therefore barred from instituting criminal proceedings against the Accused for genocide. This does not affect the prosecution of the Accused for war crimes and torture, which has already commenced in the District Court of The Hague.
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