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Public Prosecutor v. Frans Cornelis Adrianus van Anraat

Court Court of Appeal of The Hague, The Netherlands
Case number 2200050906-2
Decision title Judgment
Decision date 9 May 2007
  • Public Prosecutor
  • Frans Cornelis Adrianus van Anraat
Other names
  • Chemical Frans
Categories Genocide, War crimes
Keywords genocide, group, national, ethnic, racial, religious, intent, intent to destroy, Murder, Non-international armed conflict, poison gas, prohibited gas, war crimes
Other countries involved
  • Iraq
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Frans van Anraat was a Dutch businessman who, from 1984 until 1988, purchased large quantities of the chemical thiodiglycol from the United States and Japan. This chemical was then sold, through a number of different companies located in different countries, to Saddam Hussein’s government of Iraq. After 1984, Van Anraat was the government’s sole supplier of the chemical. The chemical is a key component in the manufacture of mustard gas and was in fact used for this purpose by Hussein’s government who then proceeded to employ the gas in attacks against Iranian military and civilians in the Iran-Iraq war and against the Kurdish population in northern Iraq. The effect was devastating, thousands of individuals were killed and many thousands more were injured with long-term effects including blindness and cancer.

The Dutch Prosecutor brought a case against Van Anraat. The District Court of the Hague acquitted him of the charge of complicity to genocide (because his genocidal intent could not be proved), but he was convicted of complicity in war crimes and the court sentenced him to 15 years’ imprisonment.

The Court of Appeal of The Hague upheld the District Court’s acquittal on the charge of complicity to genocide and his conviction of complicity to war crimes. The Court increased Van Anraat’s sentence to 17 years’ imprisonment.

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Procedural history

The Public Prosecutor issued a writ of summons against the Van Anraat (amended on 21 November 2005) for charges of conspiracy to commit genocide and conspiracy to commit war crimes in Iraq by supplying chemical weapons components, in particular thiodiglycol - which is used in the production of mustard gas - to Saddam Hussein’s regime in the period 1986 to 1988.

On 23 December 2005, the District Court of The Hague acquitted the accused of complicity to genocide but convicted him for complicity in war crimes. He was sentenced to 15 years’ imprisonment.

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Related developments

On 30 June 2009, the Supreme Court of the Netherlands upheld the 2005 conviction of Van Anraat. for complicity in war crimes. However, the Court reduced his sentence by six months due to the length of the proceedings.

On 6 July 2010, the European Court of Human Rights rejected Van Anraat's claims challenging the jurisdiction of the Dutch courts and the legal certainty of the criminal acts being prosecuted. On 16 December 2010, the District Court in The Hague decided that Van Anraat was to pay 3,493 Euros in damages to the State.

On 13 April 2011, the District Court in The Hague decided to pose questions to the International Law Institute on the application of Iranian and Iraqi law concerning the limitation of time in respect to civilian claims (only available in Dutch).

On 10 March 2012, the Prosecutor requested the judges in the Netherlands to confiscate over 1 million Euros in profits made by Van Anraat from selling chemicals to Saddam Hussein.

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Legally relevant facts

The Government of Iraq under the Arab Baath Socialist Party perpetrated and escalated the severe oppression of the Kurdish minority in the country. From the 1970s onwards, Kurds were forcibly relocated into collective villages located in barren areas easily accessible to the Iraqi army. In the 1980s an increasing number of Kurdish villages were destroyed and as many as 500 000 Kurds were forced to relocate to amalgamised villages and government complexes. In early 1987, the forces of the Kurdish leaders Barzani and Talabani joined together in order to fight the Iraqi army. Around this time, the government of Iraq came to identify all Kurds as the enemy and adopted a policy aimed at eliminating this population in what came to be known as the Anfal Operations.

In the context of the Anfal Operations, in March 1988 government forces launched chemical attacks against Kurdish villages. These attacks were accompanied by the arrest and detention of hundreds of yong men and the mass flight of civilians, large numbers of whom were captured by the government and transported to camps and prisons. Further heavy chemical attacks were launched in May 1988 through to September 1988 accompanied by mass executions (para. 7.2, District Court Decision).

From 1985 until 1988, the accused supplied the chemical raw material thiodiglycol to the government of Iraq and to an Iraqi firm affiliated with the Iraqi Ministry of Oil (para. 11.5).

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Core legal questions

  • What is the required degree of intention for complicity to genocide?
  • What is the required degree of intention for complicity in war crimes?
  • Is there a sufficient causal nexus between the Accused’s delivery of chemicals and the actual implementation of the ammunition that had been filled with mustard gas at the locations mentioned in the charges?

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Specific legal rules and provisions

  • 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare.
  • Common Article 3 of the 1949 Geneva Conventions.
  • Article 1 of the Dutch 1964 Genocide Convention Application Act.
  • Article 48 of the Dutch Penal Code.

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Court's holding and analysis

International criminal law is still developing regarding the question of the degree of intention required for a conviction for complicity in genocide. Certain decisions of international criminal tribunals have held that the accomplice must have known that the perpetrator acted with a genocidal intentions; Article 48 of the Dutch Penal Code on the other hand provides for a lesser degree of intention, namely that the accomplice willingly and knowingly accept the reasonable chance that a certain consequence or circumstance will occur. In the present instance, the evidence does not establish even this lesser standard therefore the Court declines to comment as to the applicable standard (para. 7).

The accused was aware that his supplies of thiodiglycol were used in the production of mustard gas in a country that was involved in a long-lasting war from which follows the accused’s awareness that the mustard gas was going to be used by Iraq in its armed conflict and his knowledge that the use of such gas had actually taken place. The accused was therefore very aware that in the ordinary course of events the mustard gas was going to be used (para. 11.16).

The causal requirement pursuant to Article 48 of the Penal Code requires that the accused provided the opportunity and/or the means to carry out the attacks described in the charges. Prior case law of the Supreme Court of the Netherlands has held that assistance need not be indispensable; it suffices that the assistance offered by the accessory has indeed promoted the offence or has made it easier to commit that offence (para. 12.4).

The Court of Appeal upheld the accused’s conviction for complicity in war crimes (para. 13) and increased his sentence to 17 years’ imprisonment (para. 20).

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Further analysis

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Instruments cited

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Related cases

See the other judgments against Van A.:

See also the conviction of Saddam Hussein and others in the Iraqi High Tribunal's Al Dujail and Al Anfal trials:

  • Iraqi High Tribunal (First Criminal Court), Al Dujail, Case No. 1/E First/2005, 5 November 2006.
  • Iraqi High Tribunal (Appeals Commission), Al Dujail, Case No. 29/c/2006, 26 December 2006.
  • Iraqi High Tribunal (Second Criminal Court), Al Anfal, Case No. 1/ (C) Second/ 2006, 24 June 2007.
  • Iraqi High Tribunal (Appeals Commission), Al Anfal, 4 September 2007.
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Additional materials

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