Public Prosecutor's Office v. Ahmad al-Y (First Instance)

Court	District Court of The Hague, The Netherlands
Case number	ECLI:NL:RBDHA:2021:5336
Decision title	Judgement
Decision date	21 April 2021
Parties	Public Prosecutor's Office Ahmad al-Y
Other names	26Clermond (investigation name)
Categories	Terrorism, War crimes
Keywords	non-international armed conflict, common Article 3, outrages upon personal dignity, war crimes
Links	Judgement (in Dutch)

Summary

Ahmad al-Y. was convicted of two crimes: the war crime of outrage upon personal dignity and participation in a terrorist organisation. The court holds that the accused fought alongside Ahrar al-Sham in the Syrian Civil War and considers this organisation to have terrorist intent. Therefore, the accused is convicted for participation in a terrorist organisation.

The court finds the accused also guilty of the war crime of outrage upon personal dignity. Al-Y. can be seen in a video alongside other fighters celebrating a battlefield victory around a deceased person and putting his foot on the body of the deceased person. This conduct, in combination with other acts of the accused in the video, is humiliating and degrading enough to meet the threshold of this crime. In another video, in which the accused is roughly interrogating a captured soldier, this threshold is not met.

Ahmad al-Y. is sentenced to a combined six years of imprisonment, which is a relatively low sentence due to mitigating circumstances.

Procedural history

On 11 November 2015, the accused, coming from Syria, sought asylum in Germany.

In October 2019, when the accused sought asylum in the Netherlands, the Dutch police received information from the German authorities. The accused was suspected to have been active as a fighter and regional leader for Ahrar al-Sham. An investigation started in the Netherlands.

On 22 October 2019, the accused was arrested by the police on suspicion of having committed a war crime and having participated in a terrorist organisation.

Between January 2020 and April 2021, the court held hearings on the case.

Related developments

Both the Public Prosecutor and the defence appealed on the judgement in first instance. On appeal, the accused was convicted of participation in a terrorist organisation but acquitted for the war crime charge of outrage upon personal dignity. He was sentenced to five years and four months of imprisonment.

The Public Prosecutor’s Office has appealed in cassation at the Supreme Court after the Judgement at the Court of Appeal. This case is still ongoing at the time of writing (April 2024).

Legally relevant facts

In 2011, Ahrar al-Sham was founded as a radical Islamist movement. In 2014 and 2015, the organisation had administrative control over several conquered areas in Syria. Ahrar al-Sham was involved in multiple military operations, in which it committed various human rights violations, both before and during 2015 (para. 4.4.1.2).

From 2012 onwards, there was a non-international armed conflict in Syria between the Syrian government and various organised groups, including Ahrar al-Sham (para. 5.4.2.1).

The deceased persons in the video enjoyed protected status under international humanitarian law (para. 5.4.2.2).

There is insufficient evidence of opinio juris or state practice that the requirement of the protection against public curiosity – as part of the requirement of humane treatment in non-international armed conflicts – can be considered customary international law. The accused can therefore not be tried for this particular charge in relation to video 2 (para. 5.4.2.3).

Core legal questions

Should Ahrar al-Sham be regarded as an organisation with terrorist intent?

Do deceased persons enjoy protected status under international law?

Can the requirement of protection against public curiosity – as part of the requirement of humane treatment – in non-international armed conflicts be considered international customary law?

Is the conduct of the accused degrading and humiliating to such an extent that it can be considered the war crime of outrage upon personal dignity?

Does a Dutch court have extraterritorial jurisdiction over the alleged participation in a terrorist organisation in Syria, including the possession of weapons and ammunition in relation to this alleged participation?

Specific legal rules and provisions

Common Article 3, Geneva Conventions of 1949

Article 6 (1)(c), Wet Internationale Misdrijven

Section 83, 83(a), 140 and 140a, Wetboek van Strafrecht

Article 2, Convention for the Suppression of Terrorist Bombings

Court's holding and analysis

Firstly, the court determines that it has extraterritorial jurisdiction over the alleged participation in a terrorist organisation by the accused in Syria because of its international obligations to prosecute these acts under Article 2 of the Convention for the Suppression of Terrorist Bombings. However, it has no jurisdiction over the possession of weapons and ammunition in relation to this alleged participation, thus rendering this part of the charge inadmissible (para. 3.4.2).

Secondly, the court finds that deceased persons enjoy protected status under international law (para. 5.4.1.2) and that the deceased persons in the specific video fall under this protection (para. 5.4.2.2). It also determines that there is a nexus between the conduct of the accused and the armed conflict in Syria (5.4.2.4).

Thirdly, the court holds that there is no requirement of protection against public curiosity – as part of the requirement of humane treatment in non-international armed conflicts – under customary international law (para. 5.3.2.3). Therefore, the accused can only be tried for the war crime of outrage upon personal dignity (para. 5.4.1.3).

The court finds that the conduct of the accused in one video, viewed in conjunction, is demeaning and degrading to such an extent that it meets the threshold of the war crime of outrage upon personal dignity. In this video, the accused can be seen celebrating a battlefield victory around several deceased persons, in which these victims are insulted, and crucially, the accused puts his foot on a deceased person. The conduct in the second video, however, in which the accused is shown roughly interrogating a captured soldier, does not meet this threshold (para. 5.4.2.3).

Fourthly, the court finds that Ahrar al-Sham was an organisation with a terrorist objective, as it tried to achieve its goals by means of committing terrorist crimes (para. 6.4.2.1). The (video) evidence shows that the accused was a member in Ahrar al-Sham, which makes him guilty of participation in a terrorist organisation (para. 6.4.2.2).

Finally, the court convicts the accused of two years of imprisonment for the war crime as well as four years of imprisonment for the participation in a terrorist organisation. This latter sentence is lower than usual, since the accused was a Syrian national living in the country during the conflict as well as the fact that Ahrar al-Sham commits crime on a relatively small scale and is not internationally oriented in its acts (para. 7.4).

Further analysis

Eurojust, ‘Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources – Legal framework and recent developments in the Member States of the European Union’, The Hague, February 2018.

L. Yanev, ‘Syrian War Crimes Trials in The Netherlands: Claiming Universal Jurisdiction Over Terrorist Offences and the War Crime of Outrages Upon Personal Dignity of the Dead’, In: D. Dam-de Jong and F. Amtenbrink (eds) Netherlands Yearbook of International Law, vol 52 (T.M.C. Asser Press, The Hague), 2021, pp. 301-326.

G. Verhagen, ‘Brothers in Arms? The Selection and Prioritisation of Core International Crimes and Terrorism in the Netherlands’, International Criminal Law Review, vol 23(4), 2023, pp. 522-551.

Instruments cited

Geneva Conventions of 12 August 1949

Wet Internationale Misdrijven, 1 October 2003

Wetboek van Strafrecht

ICC Elements of Crimes

Convention for the Suppression of Terrorist Bombings, 15 December 1997

Related cases

Court of Appeal The Hague, Public Prosecutor’s Office v. Ahmad Al-Y., ECLI:NL:GHDHA:2022:2858; 2200128321.v, Judgement, 6 December 2022.

Court of Appeal The Hague, Public Prosecutor’s Office v. Oussama A., ECLI:NL:GHDHA:2021:2130, Judgement, 26 January 2021.

ICTY, Trial Chamber I, The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999.

ICTY, Appeals Chamber, The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgment, 24 March 2000.

Additional materials

Dutch Public Prosecution Service, Syria.

Trial International, Universal Jurisdiction Annual Review, 2023, p. 74.

A. Rivzi, ‘Hague court convicts Syrian man for war crimes and membership in terrorist organization’, Jurist, 22 April 2021.

W. van Wilgenburg, ‘Dutch court hands 6-year prison term to former Syrian Ahrar al-Sham commander’, Kurdistan24, 22 April 2021.