Dutch Supreme Court rejects appeals of Afghan intelligence officers 08 Jul 2008
The Supreme Court's rejection of all the appeals means that Hesam and Jalalozy's sentences are now definite.

The Dutch Supreme CourtOn 8 July 2008, the Dutch Supreme Court rejected the appeals of Hesamuddin Hesam and Habibullah Jalalzoy, two high-ranking Afghan intelligence officers who sought asylum in the Netherlands in the 1990s. In 2005 the District Court of The Hague had convicted Hesam and Jalalzoy for the torture of prisoners in Afghanistan in the 1980s and 1990s and sentenced them to 12 years’ and 9 years’ imprisonment, respectively. On 29 January 2007, The Hague Court of Appeal confirmed the decisions of the District Court.

The Supreme Court found that under the Dutch Criminal Law in Wartime Act (‘Wet Oorlogsstrafrecht’) Dutch courts have jurisdiction to decide on violations of the laws and customs of war. This includes, for example, violations of Article 3 of the 1949 Geneva ‘Red Cross’ Convention IV Relative to the Protection of Civilian Persons in Time of War. Article 3 of the Dutch Criminal Law in Wartime Act provides that Dutch courts have ‘universal’ jurisdiction in respect to such crimes and that they are competent wherever in the world such crimes are committed and in respect to any suspect.

Lawyers for Hesam and Jalalzoy before the Supreme Court had argued that under Dutch law a condition for universal jurisdiction to apply is its explicit recognition in international law. They questioned whether international law allows universal jurisdiction in respect to the acts considered in these two cases, allegedly committed in the period 1985-1988 in a non-international armed conflict, as the Criminal Law in Wartime Act does.

Although neither the 1949 Geneva Conventions nor any other treaty rule explicitly recognizes the exercise by national courts of universal jurisdiction in cases as here under consideration, the Supreme Court agrees with the Court of Appeal that Dutch courts are nevertheless competent to try such international criminal cases. The Supreme Court finds that in deciding the Hesam and Jalalzoy cases the Court of Appeal correctly referred to Article 94 of the Dutch Constitution. The ‘notorious’ Article 94 prohibits Dutch courts from deciding whether or not Dutch legislation (like the Criminal Law in Wartime Act) conforms to customary international law.

The Supreme Court’s rejection of all the appeals means that Hesam and Jalalozy’s sentences are now definite.

In recent years a number of international criminal cases have appeared before the Dutch Courts, including those of Dutch businessmen Frans van Anraat and Guus Kouwenhoven.

Page Tools
Share |
Related Links

Related news items /
Dépêches antérieures

Sentences of Afghan intelligence officers upheld

Confirmation de la condamnation d’agents afghans du renseignement

29 January 2007

Research files /
Documents de recherche

Heshamudin Hesam

Habibullah Jalalzoy

External Links

Supreme Court Judgement (in Dutch)

8 July 2008