News

International crimes in Dutch Courts: Supreme Court upholds conviction of Dutch ‘Tamil Tigers’

By: Rosalie Dieleman & Emma Bakkum, Research Associates, PILPG-NL

On 4 April 2017, the Supreme Court came to a final judgment in the criminal proceedings against five Dutch nationals involved in the Liberation Tigers of Tamil Eelam (LTTE). The Supreme Court followed the decision of the court of appeal and confirmed the conviction for crimes committed during the Sri Lankan conflict. The five were convicted for participation in a criminal organization with the intent to commit terrorist offences, as well as participation in and leading of an organization with the intent to commit crimes.

The LTTE is a separatist organization established in 1976 with the aim of finding an independent state in the north and east of Sri Lanka for the Tamil population. In 2008, an investigation into the LTTE in the Netherlands was started. As a result, Thiruna E., Joseph M.J., Srilangan R., Ramachandran S., and Lingaratnam T., were found as leaders of various Tamil organizations in the Netherlands, playing an important role in the LTTE’s international network.

The Supreme Court reiterated the 2015 judgment of the court of appeal, by concluding that the armed conflict in Sri Lanka was a non-international one and therefore “Dutch criminal law can be applied to members of an opposition group who commit terrorist offences outside the territory of the Netherlands”, as international humanitarian law is not exclusively applicable. Moreover, the Supreme Court concluded that combatant status is only conferred upon troops involved in an international armed conflict (i.e. between states) and thus not upon LTTE members, who were, as established before, involved in an internal armed conflict.

In 2015, the court of appeal convicted the five Dutch Tamils for participation in a criminal organization with the intent to commit terrorist offences, as well as participation in and leading of an organization with the intent to commit crimes. Appeal was filed in all five cases. The main question during higher appeal was whether the five Dutch Tamils could be prosecuted under Dutch criminal law for their actions. The defence argued that the conflict in Sri Lanka is an international conflict, leaving only international humanitarian law applicable to the case. The defence secondly argued that the defendants, in their capacity as LTTE members could claim combatant status. This status would enable them to participate in the armed conflict in Sri Lanka and consequently they would only be liable for violations of international humanitarian law. This argumentation was unsuccessful before the Supreme Court.

A second international crimes case was adjudicated in April 2017 in the Netherlands. On 21 April 2017, the court of appeal of Den Bosch convicted 74 year-old Dutch businessman Guus Kouwenhoven for illegal trade in weapons and complicity in war crimes in Liberia and Guinea between 2000 and 2003.

International cooperation leads to Gambian ex-minister’s extension of detention

By: Jill Bähring, Research Associate, PILPG-NL

Switzerland extends the detention of former Gambian minister of the interior, Ousman Sonko, after securing further evidence for crimes against humanity. Sonko is accused of committing and overseeing torture during his term as interior minister from 2006 to 2016. Gambia now seeks his extradition, according to interior minister Mai Ahmad Fatty.

Ousman Sonko was a righ-ranking Gambian lieutenant as well as interior minister. He was dismissed by Gambia’s former dictator Yahya Jammeh in September 2016, before Jammeh himself was deprived of power last year. Sonko then fled to Sweden before entering Switzerland in November, where he requested asylum. Trial International then triggered his arrest by filing a complaint with the Swiss authorities.

The new Gambian government led by election winner Adama Barrow had provided additional evidence to aid Switzerland in the case against Sonko. Following the submission of seized documents, his detention was extended by three months.

Only days after the press reported Sonko’s extension of detention, Gambia’s new interior minister Mai Ahmad Fatty announced that the country now seeks Sonko’s extradition. The newly elected democratic government intended to question him on cases of torture and enforced disappearance of Gambia’s opposition, such as Solo Sadeng, who was the organising secretary of the United Democratic Party (UDP).

Solo Sadeng was arrested in April 2016, among the prior government of dictator Yahya Jammeh. He was killed during his arrest. His corpse was exhumed in May 2017 and is undergoing examination for further evidence.

Evidence for witness bribery and war crimes against Peru’s former president

By: Jill Bähring, Research Associate, PILPG-NL

Peru’s former President Ollanta Humala faces investigation into allegations of crimes against humanity related to the fight against the Maoist guerilla group Shining Path in the 90’s by the Peruvian military. Two new witnesses issued testimony on torture and murder of civilians allegedly carried out at the Madre Mia military base.

Humala was an army officer in the 80’s and 90’s. He served as head of state from 2001 to 2016. He originally ran for office as a leftist, but then shifted to the right during his term. Among other things, he supported a bill that criminalized the denial of the Shining Path’s role in the Peruvian civil war in the 80’s, which cost the life of 69,000 individuals. A previous investigation against him was dropped in 2009 for lack of evidence.

However, newly leaked transcripts of phone conversations that were recently submitted to local media suggest that Humala bribed witnesses to get a testimony in his favour. Witness Jorge Avila, who testifies that his brother was killed and tortured by Humala, who allegedly operated under the pseudonym “Capitan Carlos” at military basis “Madre Mia”, told the newspaper El Comercio that he received $4,500 in 2006, when he first came out to the public, to recant the accusations against Humala.

In addition to these new allegations, Humala and his wife are currently under investigation for embezzling and laundering campaign funds in 2006 and 2011.

Ollanta Humala denies all allegations.

Bridging Scholarship and Practice: 20 Years of the Public International Law & Policy Group

By: Brianne McGonigle Leyh and Julie Fraser, Senior Counsel, PILPG

This article was published earlier in the Utrecht Journal of International and European Law on 12 April 2017.

When the Editor-in-Chief of the Utrecht Journal of International and European Law (UJIEL) approached us with the possibility of guest editing a special issue related to public international law and policy, we felt the timing could not have been better. As academics at Utrecht University with the Netherlands Institute of Human Rights and Montaigne Centre for Judicial Administration and Conflict Resolution, we felt that a theme linking the world of lawyers with that of policymakers was important in order to examine the role of law in protecting human rights and security. Moreover, as Senior Counsel with the Public International Law & Policy Group (PILPG), which celebrated its 20-year anniversary in 2016, we welcomed the idea to link academic scholarship with the work of PILPG. After all, PILPG’s founders, Professor Paul Williams and Professor Michael Scharf, have themselves acted as bridges between scholarship and practice for years.

As a result, this special edition is not only intended to highlight the extraordinary work carried out by PILPG on issues of law and policy around the world, but also to emphasise the importance of linking scholarship with practice and addressing contemporary issues impacting the world in which we live. PILPG’s motto ‘lawyering peace’ requires reflection on the role that law can play in helping to bring about the peaceful resolution of serious problems affecting individuals and societies as a whole. This special edition of UJIEL, addressing a variety of themes, does just that.

Big Ego’s in International Politics: Do We Need More or Less International Law? | Event: Trump’s World – The Trump Administration and International Law

By Rosalie Dieleman, Research Associate PILPG-NL

“We live in a time of big ego’s in international politics”, said Jaap de Hoop Scheffer, former NATO Secretary-General, referring to Donald Trump, Vladimir Putin and Recep Tayyip Erdogan. De Hoop Scheffer warned that excessive pride and egotism brings along the risk that, “in times of crises, ratio can fall victim to egotism”. In the context of international politics, these egos can therefore have very serious consequences. How to deal with this? Should and can we still put our trust in international agreements and international rule-based institutions, or does this era call for a different approach?

Exactly one week after the inauguration of the 45th president of the United States, the Asser Institute and the John Adams institute co-organized an event to reflect on and discuss the possible implications of Trump’s presidency on topics of international law, including ”war and peace”, ”the Paris Agreement”, and ”American trade policy”.* The event was moderated by Tracy Metz, the director of The John Adams Institute, and the keynote speakers were Henne Schuwer, Ambassador of the Netherlands to the United States, and Jaap de Hoop Scheffer, former NATO Secretary General. With speakers and panelists that all have a background in international law and diplomacy, it should come as no surprise that the answers presented to the questions posed in the introductory paragraph all pled for engagement and strengthening of international institutions. Below I will discuss some of the policy recommendations given by De Hoop Scheffer and Schuwer, as well as question their suitability in times of big egos.

Both speakers stressed the importance of engaging with the Trump administration. De Hoop Scheffer noted that it was important to “stop lamenting and moaning” over the Trump presidency, accept and respect that he is the democratically elected president, and that we therefore need to engage with him. In addition, he argued that we should take the men and women who carry out Trump’s politics seriously, as diplomacy is a very important tool, especially in times of crises. And although Schuwer was clear in stating that we should “rethink” our ties with the United States, he also stressed the importance of approaching the US with an “outstretched hand”. The argument that it is important to keep all communication channels open is convincing, especially when Trump’s policy is as unpredictable and fast-changing as it has been in the first weeks of his presidency. The old adagio ‘keep your friends close and your enemies even closer’ might apply here, as history shows that isolation or cutting off diplomatic ties seldom leads to good outcomes.

To engage and keep diplomatic ties strong, however, does not mean that the Netherlands or the EU should dance to Trump’s tune, as was opined in both addresses. Schuwer, as ambassador of the Netherlands, stressed the importance of the Netherlands to make clear that it is a country of certain values. As honorable as it sounds to argue that the Netherlands should underline its values towards the US, it is necessary to reflect on the ability of the Netherlands, as a relatively small country, to credibly uphold its values. Especially when taking into account, as panelist Liesbeth Lijnzaad pointed out, the worrying statements Trump has already made concerning torture. De Hoop Scheffer argued the same for the EU, calling on the EU to make clear that it is a community of values, and more specifically, that none of its member states will tolerate rendition or secret detention facilities. I agree with De Hoop Scheffer that the Netherlands needs a united EU in order to be able to uphold its values in times of big egos in international politics.

Lastly, and in line with the previous argument, both Schuwer and De Hoop Scheffer called for strengthening our international institutions, especially with regards to the EU and NATO. Both of them agreed with Trump’s statements that Europe has neglected its financial responsibilities with regards to NATO, and that this is a serious issue that should be addressed. With regards to the EU, De Hoop Scheffer argued that the Trump presidency should be the rallying cry for the member states to take the EU seriously, with regards to economic, political and military issues. More in general, De Hoop Scheffer argued that we should not do away with our rules-based multilateral institutions, despite their malfunctions, there is no other possibility we can take on global issues such as terrorism, pandemics, cybercrime, and mass-migration without these institutions. While the arguments of the speakers might very well be true, it is also important to note that the future of the EU very much depends on the public sentiment in its member states, taking into account the general elections coming up in the Netherlands, France and Germany. With the possibility of the anti-EU sentiment gaining the overhand during these elections, it might be very difficult to attain more unity within the EU. De Hoop Scheffer’s touched upon this issue with his plea for the EU not to leave its fate to the “fringes” of politics, thereby referring to politicians such as Le Pen and Wilders. This call might be answered by the EU summit in Malta, where the heads of state of EU member states agreed to draft and sign a new declaration concerning the future of the EU in March 2017, in Rome.

The desired response to big egos and the uncertainty and unpredictability of international politics that comes along with them, thus seems to be to put more trust in international law, rather than less. I agree with these speakers that European states need to cooperate in international institutions including the EU, yet these institutions need to be revised in order to be equipped to face the needs of our current time. For instance, by a more equitable distribution of costs to finance organizations like NATO, increasing cooperation with regards to foreign policy and security in the EU, and put in place faster decision-making procedures in these areas. As the judge who declared Trump’s travel ban illegal demonstrated: even the powers of the president of the United States are limited by checks and balances. We need such checks and counterweights in international law and politics as well. It seems that,

despite their malfunctions and limitations, international cooperation through institutions like the EU is the closest thing European states have to offer in this regard.

* The livestream of the event is available on the website of the Asser Institute