Search results

It is well accepted in international law that Heads of State, Heads of Government and ministers of Foreign Affairs enjoy immunity from prosecution by virtue of the office that they hold. This immunity extends to acts committed in an official capacity whilst in office, after they have left office. In recent years, however, this concept of functional immunity has been challenged by allegations that former government officials have committed international crimes whilst in office. In what has been hailed as a ‘landmark’ decision, the Federal Criminal Court of Switzerland considered that the former Algerian Minister of Defence, who is charged with having committed war crimes and torture whilst in office in 1992-1993, is not entitled to immunity before the Swiss courts. In reaching this conclusion, the Court considered that it would be contrary for international law to prohibit genocide, war crimes and crimes against humanity as fundamental norms but then to allow for a broad interpretation of functional immunity the result of which would be that beneficiaries of this immunity would be immune from prosecution even where they allegedly committed such crimes. 

Maher H.’s case is the first conviction in the Netherlands of a Dutch ‘foreign fighter’ returning from Syria. He was convicted on 1 December 2014 and sentenced to three years’ imprisonment by the District Court in The Hague. Although it was not exactly clear what Maher H. had done in Syria, the Court found enough evidence to determine, among other things, that he was guilty of preparing to commit terrorist crimes, including murder and manslaughter. The Court based its decision on the fact that he had actually been to Syria and participated in the armed conflict there as well as his support for the jihad. Factors such as Maher H.’s decision to join a jihadi armed group in Syria that aimed to destroy Syria’s political structure and establish an Islamic State were also considered relevant in showing his terrorist intent. The Court moreover convicted Maher H. of disseminating inciting videos, pictures and a document. However, he was acquitted of conspiring to commit a terrorist offence due to a lack of evidence. This decision was subsequently appealed by the defendant.