Information Note on the Court’s case-law No. 132
July 2010
Van Anraat v. the Netherlands (dec.) - 65389/09
Decision 6.7.2010 [Section III]
Article 7
Article 7-1
Nullum crimen sine lege
Conviction for supplying Iraqi authorities with chemical substance used to produce poisonous gas: inadmissible
Facts – Between 1984 and 1988 the applicant supplied the Iraqi Government with a chemical substance used to produce the highly poisonous “mustard gas” which was then used in the Iran-Iraq war as well as in Iraqi attacks on the Kurdish population in northern Iraq. In 2005 the applicant was convicted in the Netherlands under section 8 of the War Crimes Act for aiding and abetting violations of laws and customs of war committed by Saddam Hussein and his collaborators in gas attacks on both locations.
Law – Article 6 § 1: The applicant firstly complained about the Supreme Court’s failure to reply to all the arguments he had raised before it, in particular an argument concerning his protection by the foreign sovereign immunity enjoyed by the perpetrators of the crimes he had allegedly aided and abetted. However, the Court noted that the applicant had raised this issue only in his reply to the Prosecutor General’s advisory opinion, that is, at the final stage of the proceedings before the Supreme Court. While Article 6 guaranteed the right of defendants in criminal proceedings to reply to the Prosecutor General’s opinion, it did not allow defendants to submit fresh arguments that had no bearing on any point contained in that opinion itself. The Supreme Court had a long-standing jurisprudence concerning the universal jurisdiction of the Netherlands criminal courts over crimes set out in section 8 of the War Crimes Act and, had the applicant wished to request it to change that approach, there had been nothing to prevent him from submitting his arguments at an earlier stage of the proceedings. In conclusion, Article 6 did not compel the Supreme Court to provide a reasoned response on this point.
Conclusion: inadmissible (manifestly ill-founded).
Article 7: The applicant further complained that section 8 of the War Crimes Act lacked foreseeability in so far as it relied for its substantive application on standards of general international law. However, given the general purpose of laws, it was logical that the wording of statutes could not always be precise; one of the standard techniques of regulation by rules was using general categorisations as opposed to exhaustive lists and, since the choice of legislative technique was reserved for the domestic legislature, in principle it escaped the Court’s scrutiny. Further, as to the applicant’s argument concerning the lack of precision of the applicable rules of international law, the Court concluded that during the period in which the applicant had supplied the Iraqi Government with the chemical substance in question, a norm of customary international law was in existence that prohibited the use of mustard gas as a weapon of war in international conflict, not least because of the 1925 Geneva Gas Protocol* and the repeated condemnations throughout the Iran-Iraq war by the UN General Assembly of the use of chemical weapons. In so far as the applicant sought to challenge the domestic courts’ findings of fact, the Court recalled that domestic courts were better placed to assess the credibility and relevance of evidence. In conclusion, it could not be maintained that, at the time when the applicant was committing the acts which led to his conviction, there was anything unclear about the criminal nature of the use of mustard gas either in an international conflict or against a civilian population. The applicant could therefore reasonably have been expected to be aware of the state of the law and to take appropriate legal advice (if necessary).
Conclusion: inadmissible (manifestly ill-founded).
* The League of Nations Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare was signed at Geneva on 17 June 1925 and entered into force on 8 February 1928.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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