De Haagse Stadspartij et al. v. The Netherlands

Court	District Court of The Hague, The Netherlands
Case number	LJN: AT5152, KG 05/432
Decision title	Verdict
Decision date	5 April 2005
Parties	De Haagse Stadspartij Stichting Haags Vredes Platform Eiser 3 Eiser 4 Eiser 5 Eiser 6 Eiser 7 Eiser 8 Vereniging van Anti-Fascistische Oud-Verzetsstrijders Nederland; Bond van Anti-Fascisten Vereniging van Juristen voor de Vrede De Staat der Nederlanden (Ministerie van Algemene Zaken & Ministerie van Buitenlandse Zaken)
Categories	Crime of aggression, Torture, War crimes
Keywords	War crimes, torture; crime of aggression; (head of state) immunity, obligation to prosecute
Links	Verdict District Court of The Hague (in Dutch)
Other countries involved	Afghanistan Iraq United States

Summary

A group of Dutch individuals and organisations filed a claim against the Netherlands asking for the arrest of George W. Bush. The proceedings were filed in advance of Bush’s visit to the Netherlands in his capacity as US President.

The American Service-Members’ Protection Act of 2002 (ASPA) allows the US to invade Dutch territory to liberate American or Israeli military personnel in the event that they are detained by the International Criminal Court (ICC). The petitioners said that such an incursion might result in many casualties and would violate international law. Therefore, they claimed that the ASPA constitutes a threat against the Netherlands, its citizens, and the ICC, and had to be assigned to George W. Bush.

On 5 April 2005, the District Court dismissed the case. The Court held that it cannot hear cases presenting political questions. In addition, the Court held that it could not prosecute George W. Bush because he enjoyed immunity as head of state.

Procedural history

In early May 2005, George W. Bush, at that time the presiding US President, brought a visit to the Netherlands. In advance of the official visit, a group of Dutch individuals and organisations initiated proceedings against the Netherlands seeking the arrest of George W. Bush.

Legally relevant facts

According to the petitioners' claims, the American Service-Members’ Protection Act of 2002, also known as ‘The Hague Invasion Act’, provides for a US incursion on Dutch soil in the event that American or Israeli military personnel are detained by the International Criminal Court (ICC). The petitioners claimed that this alleged threat violated international law. In addition, the petitioners claimed that George W. Bush was responsible for, among others, war crimes against civilians and torture committed in Iraq and Afghanistan.

Core legal questions

Can a civil court adjudicate on decisions made in the field of politics and political decision making?

Can the court prosecute a presiding head of state?

Specific legal rules and provisions

International Crimes Act, 2003, the Netherlands, Article 16

Rome Statute of the International Criminal Court, 1998, Article 27

Court's holding and analysis

On 4 May 2005, The Hague District Court dismissed the proceedings.

In its decision, the Court first emphasised that a decision in favor of the petitioners would have serious implications for the foreign relations of the Netherlands (para. 3.4).

Furthermore, the Court held that under customary international law heads of state enjoy immunity from criminal prosecution in foreign states, and that the immunity of George W. Bush was not set aside by Article 27 of the Rome Statute since the US was not a State Party, nor had the ICC ordered the arrest of George W. Bush (paras. 3.6-3.7).