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Public Prosecutor v. Joseph Mpambara

Court District Court of The Hague, The Netherlands
Case number 09/750009-06 and 09/750007-07
Decision title Interlocutory Decision
Decision date 24 July 2007
  • Public Prosecutor
  • Joseph Mpambara
Categories Genocide, War crimes
Keywords child, hostage, jurisdiction, Murder, Non-international armed conflict, rape, torture, war crimes
Other countries involved
  • Rwanda
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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.

By a decision of 24 July 2007, the District Court of The Hague determined that it did not have jurisdiction to try the Accused for crimes of genocide as it lacked a statutory basis to do so. Further, it could not exercise indirect jurisdiction as one of the three criteria set out in the Dutch Penal Code was not met. 

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Procedural history

The Accused, Joseph Mpambara, lived with his parents in western Rwanda during the 1994 genocide. He subsequently fled to Kenya and in November 1998, he arrived 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.

On 5 January 2007, the Public Prosecution Service demanded a preliminary enquiry with respect to the counts of genocide. On 11 January 2007, the examining magistrate rejected this demand on the basis that the Netherlands lacks the authority to prosecute and try the accused for genocide.

On 11, 16 and 17 May 2007, the Accused was summoned before the District Court of The Hague for a pro forma hearing the object of which is to determine whether further investigative activities are required. During the hearing, the Public Prosecutor requested the Court to determine whether the Prosecutor may institute proceedings for genocide.

The Accused is charged with five counts of war crimes or, in the alternative, torture committed in April 1994 in Rwanda. Those same counts are also charged as genocide.

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Related developments

On 17 December 2007, the Court of Appeal of The Hague upheld the decision of the District Court (on different grounds) that the Dutch courts have no jurisdiction with respect to the counts of genocide. On 21 October 2008, the Supreme Court of The Netherlands confirmed the decision of the Court of Appeal.

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.

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Legally 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 number of 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).

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Core legal questions

  • Do any Dutch statutory provisions confer jurisdiction on Dutch courts for the crime of genocide committed abroad by a non-Dutch national?
  • In the negative, is there a legal basis for the exercise of universal jurisdiction by the Dutch courts?
  • Can the Dutch courts exercise indirect jurisdiction due to the referral of the case of the Accused to the Dutch State by the International Criminal Tribunal for Rwanda?

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Specific legal rules and provisions

  • Articles I and VI of the Genocide Convention.
  • Articles 1, 2 and 5 of the Act Implementing the Genocide Convention.
  • Articles 2 – 7 of the Dutch Criminal Code.
  • Article 283(6) of the Dutch Code of Criminal Procedure.

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Court's holding and analysis

There is no provision, in either the Dutch Criminal Code, in the Act Implementing the Genocide Convention, in the Act on Criminal Law in Time of War or in any other Act or Regulation, which would confer jurisdiction on Dutch courts in respect of genocide committed by a non-Dutch national abroad, if this fact was not committed against or with regard to Dutch national, a Dutch legal person or if any Dutch interest was not impaired or could be impaired (para. 26).

Further, no obligation to exercise universal jurisdiction with respect to the crime of genocide can be derived from either the Genocide Convention (para. 34) or a decision of an international organisation (para 35). Furthermore, customary international law may not serve as a legal basis for the exercise of universal jurisdiction as provisions on jurisdiction can only be extended by the Dutch legislature or an obligation erga omnes resulting from a treaty or the decision of an international organisation (para. 41).

The exercise of indirect jurisdiction, pursuant to Article 4a(1) of the Criminal Code, is only allowed in the present instance where the International Criminal Tribunal for Rwanda (ICTR) has direct jurisdiction over the Accused; and the ICTR can be equated with a foreign State as required by the Code; and there is a treaty granting competence to Dutch courts to institute criminal proceedings (para. 46). Although the first two criteria are satisfied (paras. 48, 60), the Court found no basis in either the UN Charter in conjunction with the ICTR Statute or the Genocide Convention which explicitly provides for an obligation or power of the Netherlands to take over criminal proceedings from the ICTR at the request of the latter (paras. 67, 73, 87).

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Further analysis

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Instruments cited

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Related cases

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Additional materials

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