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

Court	Court of Appeal of The Hague, The Netherlands
Case number	ECLI:NL:GHDHA:2022:2858; 2200128321.v
Decision title	Judgement
Decision date	6 December 2022
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 accused of two crimes: the war crime of outrage upon personal dignity and participation in a terrorist organisation. The court finds that the accused fought in Syria alongside the terrorist organisation Ahrar al-Sham and he is therefore convicted of participation in a terrorist organisation.

Unlike the Court of First Instance, the Court of Appeal does not find the suspect guilty of the war crime of outrage upon personal dignity. The videos show the accused spitting towards the deceased person and putting his foot near a body, while he was celebrating a victory over soldiers of the Syrian Government. Although the actions of him and his fellow fighters are disrespectful and distasteful, the court finds that this conduct does not meet the threshold necessary for this crime. The conduct is not degrading or humiliating enough. The victims are not severely suffering and are not displayed as a trophy.

The accused is sentenced to five years and four months of imprisonment, which is lower than usual, since the case took unreasonably long.

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.

On 21 April 2021, the District Court in The Hague convicted Ahmad al-Y. of the war crime of outrage of personal dignity and participation in a terrorist organisation.

In May 2021, an appeal was filed on behalf of the accused as well as on behalf of the Public Prosecutor’s Office.

In October 2022, the hearings on appeal commenced.

Related developments

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 in Syria as a radical Islamist movement. Between 2013 and 2015, the organisation took control of territory in Syria and established administrative structures. During the Syrian Civil War, Ahrar al-Sham was actively involved in the siege of Fuaa and Kefraya as well as the Battle of al-Ghab. The court finds that the organisation has perpetrated war crimes and crimes against humanity (para. 8.2).

Between 2012 and 2017, a non-international armed conflict took place in Syria which involved Ahrar al-Sham (para. 9.1).

The deceased persons shown in the videos were protected persons under customary international law and by Common Article 3 of the Geneva Conventions (para. 9.2).

Core legal questions

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

Do deceased persons enjoy protected status under international 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?

Is the possession of a weapon or ammunition as a terrorist offence, in relation with the charge of participation in a terrorist organisation, under Dutch jurisdiction if the conduct is committed in Syria?

Has the reasonable time limit been violated (under art. 6(1) of the ECHR) in first instance and on appeal?

Specific legal rules and provisions

Common Article 3, Geneva Conventions

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

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

Court's holding and analysis

The court acquitted the accused of the war crime charge of outrage upon personal dignity, because the conduct shown in the videos is not humiliating or degrading to such an extent that it can be considered a war crime. The videos show government soldiers surrounded by fighters of Ahrar al-Sham, including the accused, celebrating a victory. The victims are insulted and a foot is placed on a deceased person. The accused moves his leg towards the deceased person and two individuals spit towards the victim. The accused also shared the videos on YouTube (para. 8.3).

Even though the actions are held by the court to be extremely distasteful, the deceased persons are considered to not have suffered severely. Moreover, the victims are not displayed as trophies, the conduct only lasts a few minutes and no specific attention is given to this specific conduct. Lastly, the interests of the surviving relatives of the victims cannot be taken into account, as there is no information in this regard (para. 9.3).

The accused is found guilty of participation in a terrorist organisation, namely Ahrar al-Sham. The organisation wanted to instil fear on the population and committed several offences listed in Article 83 of the Dutch Criminal Code. The accused is clearly a fighter of Ahrar al-Sham, thus he participated and had knowledge of the terrorist intent of the organisation (para. 10).

The court finds that it has jurisdiction over the crime of possessing a weapon or ammunition in relation to the charge of participation in a terrorist organisation if the conduct is committed in Syria. It argues that it has jurisdiction because this charge is punishable in Syria, where the crime was allegedly committed and whose nationality the accused holds. However, the suspect cannot be extradited due to the lack of a treaty-based relationship with Syria, which means Dutch criminal law applies (para. 5).

The accused is sentenced to five years and four months of imprisonment as the reasonable time limit has been violated (para. 16).

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

Related cases

District Court The Hague, Public Prosecutor’s Office v. Ahmad al-Y., ECLI:NL:RBDHA:2021:5336, Judgement, 21 April 2021.

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, What cases have been prosecuted?, Syria.

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

Social media links

https://twitter.com/chpaulussen/status/1647878674471895046