Frans Cornelis Adrianus van Anraat. v. The Netherlands

Court	European Court of Human Rights, France
Case number	65389/09
Decision title	Decision as to Admissibility
Decision date	6 July 2010
Parties	Frans Cornelis Adrianus van Anraat The State of The Netherlands
Other names	Chemical Frans
Categories	Genocide, War crimes
Links	Decision as to Admissibility
Other countries involved	Iraq The Netherlands

Summary

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. Van Anraat was convicted by the District Court of The Hague as accessory to war crimes committed by Hussein and his men. His conviction was upheld on appeal by the Court of Appeal of The Hague and the Supreme Court of The Netherlands. He was sentenced to 16 years and 6 months’ imprisonment.

The present decision is the result of Van Anraat's appeal to the European Court of Human Rights challenging the jurisdiction of the Dutch courts to try his case. His application was rejected as the European Court of Human Rights found, notably, that the prohibition on the use of chemical weapons in warfare was a crime under customary international law at the time the applicant supplied thiodiglycol to Iraq and he could therefore rightly be convicted of violations of this custom of war.

Procedural history

The Public Prosecutor issued a writ of summons against 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.

On appeal, the Court of Appeals of The Hague upheld the conviction and increased the sentence to 17 years’ imprisonment. On final appeal, the Supreme Court of The Netherlands upheld the conviction but reduced the sentence to 16 years and 6 months’ imprisonment in light of the length of the proceedings.

Van Anraat applied to the European Court of Human Rights to challenge the jurisdiction of the Dutch courts.

Related developments

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 avaiable 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.

Legally relevant facts

The applicant, Van Anraat, was a businessman who, between April 1984 and August 1988, purchased vast quantities of the chemical thiodiglycol in the United States and Japan which, acting through companies based in several different countries, he supplied to the government of Iraq. After 1984, the applicant was the government of Iraq’s only supplier of this substance (para. 3).

Thiodiglycol is a crucial component in the production of mustard gas (para. 4), which is known to have been used by the Iraqi military, along with other chemical weapons, in attacks against the Iranian armed forces and civilians during the Iran-Iraq war (1980-1988) and in attacks against the Kurdish population of northern Iraq (1988). These attacks killed thousands of civilians and injured many more (para. 5).

Core legal questions

Has there been a violation of the applicant’s Article 6 rights under the European Convention on Human Rights since the Supreme Court of The Netherlands failed to respond to his argument that the Iraqi Special Tribunal has jurisdiction over the applicant as the accessory of Saddam Hussein pursuant to the Statute of that tribunal?
Does Section 8 of the War Crimes Act breach the applicant’s Article 6 and/or Article 7 rights because it fails to describe the criminal acts contained therein with sufficient precision?

Specific legal rules and provisions

Article 6 of the Charter of the International Military Tribunal at Nuremberg.
Article 3 common to the 1949 Geneva Conventions.
Articles 146 and 147 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.
Articles 6 and 7 of the European Convention on Human Rights.

Articles 48, 49 and 57 of the Dutch Penal Code.
Sections 1, 3, 8 of the Dutch War Crimes Act and the Genocide Treaty (Implementation) Act
Sections 4, 5, 6 of the International Crimes Act.

Court's holding and analysis

The Court found that the applicant’s argument was a new one made for the first time in response to the Procurator General’s advisory opinion at the final stage of the proceedings before the Supreme Court of The Netherlands gave judgment. The requirement of adversarial proceedings enshrined in Article 6(1) of the European Convention on Human Rights provides that a defendant shall have the opportunity to respond to the advisory opinion of the Procurator General but it does not allow the defendant to submit fresh arguments without a bearing on any of the points contained in the advisory opinion itself. This being so in the present instance, the Supreme Court was not compelled to respond to the applicant’s argument (paras. 66-68).

The applicant was convicted by the Dutch courts of being an accessory to violations of the laws and customs of war as proscribed by Section 8 of the War Crimes Act. In setting out the applicable laws and customs of war, the Dutch courts referred to customary international law and a number of international conventions (para. 82). The Court does not find that the applicable rules of international law relied on by the Dutch courts lacked precision. On the contrary, the 1925 Geneva Gas Protocol is of norm-creating character (para. 89) and its norms have been adopted in State practice and opinio juris as evidenced by the adoption of the Biological Weapons Convention, the issuing of instructions to armed forces, the drafting of the Chemical Weapons Conventions and the repeated condemnation by the UN General Assembly and Security Council of the use of chemical weapons in the Iran-Iraq War (paras. 90-91). The Court therefore found that, at the time when the applicant supplied thiodiglycol to the Government of Iraq, customary international law prohibited the use of mustard gas as a weapon of war in an international conflict (para. 92). The same is true for use of mustard gas as a weapon of war in non-international armed conflict (para. 94).

The application is therefore rejected (para. 97).

Further analysis

Press Release, 'ECHR: Dutch Businessman Properly Convicted By Dutch Court as an Accomplice in Mustard Gas Attack', Dutch Section of the International Commission of Jurists, 6 July 2010;
M. Zwanenburg & G. den Dekker, 'Introductory Note to the European Court of Human Rights: Van Anraat v. The Netherlands', International Legal Materials, 2010, Vol. 49, p. 1268.

Instruments cited

Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925.
Statute of the International Military Tribunal at Nuremberg (Nuremberg IMT Statute), 1945.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
Treaty on the Non-Proliferation of Nuclear Weapons, London/Moscow/Washington, 1 July 1968.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, London/Moscow/Washington, 10 April 1972.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris, 13 January 1993.

War Crimes Act and the Genocide Treaty (Implementation) Act of the Kingdom of the Netherlands, 1994 (Unofficial Translation by the ICRC).
International Crimes Act of the Kingdom of the Netherlands, 2003.

Related cases

See the other judgment against Van Anraat

District Court of The Hague, Public Prosecutor v. Van Anraat., Case No. 09/751003-04, Judgment, 16 December 2010 (Case available in English).

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.