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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. 

The case involved a 21-year-old man of German nationality with Iranian roots. He became a radicalised individual of Salafist Islam while living in Germany and eventually decided to travel to Syria. During his time, there were three photographs taken of him posing with the severed heads of enemy combatants impaled on metal rods, together with another man, known to be involved with jihadists groups in Syria.

After his return to Germany, these photos were uploaded by Vedat V. onto a Facebook page, with limited privacy settings.  Additionally the accused had stored these photos on a computer belonging to the sister of a deceased foreign fighter and on his mother’s phone. The accused was arrested and charged with war crimes under the German International Criminal Code, for gravely humiliating and degrading treatment of protected persons, in this instance the bodies of deceased soldiers.

The trophy like treatment of the severed heads and knowledge of the fact that viewing such photos would horrify and shock a reasonable person demonstrated the intent of the accused to mock the dead.

He was sentenced to two years’ imprisonment for war crimes consisting of the degrading and humiliating treatment of protected persons.

Between April and July 1994, as much as 10% of the entire Rwandese civilian population was murdered in an ethnic conflict in which the Hutu sought to eliminate the Tutsi. At the same time, an armed conflict was fought between the Rwandese government army (FAR) and the armed forces of the Rwandese Patriotic Front (RPF). The RPF were a rebel army primarily composed of descendants of Rwandese Tutsi who fled from Rwanda in preceding years.

The Accused, Joseph Mpambara, fled Rwanda for The Netherlands. He was brought before the Dutch courts on charges of war crimes, torture and genocide. The present decision by the District Court of The Hague convicted the Accused of complicity in torture on two separate incidents. The first concerned the threatening of a German man, his Tutsi wife and their baby at a roadblock. The second concerned the mutilation and murder of a number of Tutsi women and their children who were stopped and forced outside from the ambulance in which they were being transported from one locality to another.

The Court was not able to convict the Accused for war crimes as it found that there wasn’t a sufficient link between the acts and the armed conflict in Rwanda. It was precluded from prosecuting the charges of genocide because the Dutch courts lacked jurisdiction. The Accused was sentenced to 20 years’ imprisonment.

Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001 by members of the United States Armed Forces, he was transferred to the United States detention centre at Guantanamo Bay in 2002. By an order of the President of the United States, Hamdan was designated to stand trial before a United States Military Commission for charges of conspiracy to commit multiple offenses, including attacking civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. Hamdan’s counsel applied for a writ of habeas corpus alleging that the military commissions were unlawful and trial before them would violate Hamdan’s rights of access to a court.

In this decision, the Supreme Court reversed the decision of the Court of Appeal for the District of Columbia and held that Hamdan’s trial by military commission would be unlawful for a number of reasons: conspiracy, with which he is charged, is not a crime against the laws of war, the commissions do not conform to the requirements of the Uniform Code of Military Justice, nor with the rights guaranteed to Hamdan under the 1949 Geneva Conventions.

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.

In the present decision, the Supreme Court of The Netherlands rejected the appeal of the Public Prosecutor against the earlier decision of the Court of Appeal of The Hague. The Supreme Court confirmed that Dutch Courts have no jurisdiction over the crime of genocide allegedly committed by the Accused. This does not, however, bar prosecution of the Accused for war crimes and torture.