The Netherlands’ Legislative Measures to Implement the ICC Statute

Harry Verweij and Martijn Groenieer , The Netherlands’ Legislative Measures to Implement the ICC Statute in Roy S. Lee Ed., “State’s Responses to Issues Arising From the ICC Statute” Constitutional, Sovereignty, Judicial Cooperation and Criminal Law”, Transnational Publisher (2005), 83-103

Personal Notes:


NL adopted Ratification Act in 2001 to become state party to RS. In 2002, it passed Implementation Act and Adjustment Act to enable NL to cooperate with ICC. In 2003, it adopted International Crimes Act in order to criminalize RS crimes domestically [83].


NL government sought to speed up first its ratif process. The best way to do so was to separate the ratif process from the imple aspects which would require careful and detailed examination of all relevant-national laws and procedures, which would consume more time. The ratification Act was u=introduced in the House of Rep of the States General (the lower house of the Dutch Parliament) on Nov 7, 2000. Article 91 , para 3 of the Constitution provides that ‘any provisions of a treaty that conflict with the Constitution or which  lead to conflict with it may be approved by the House of the States General only if at least two-thirds of the votes case are in favor”. Because of ‘possible doubt about incompatibility between the  Constitution and provisions of the rs’, the dutch government sought the approval of the house under that provision of the Constitution. This meant that should the House find that there was any incompatible with the Constitution, the RS could still be approved with the support of two-thirds of the House members. [84].


two issues that were highlighted in its explanatory memorandum accompanying the ratification bill were: assigning competence to the ICC in place of Dutch courts to judge criminal cases, and the establishment on Dutch territory  of an international court that would apply non-Dutch law. [Abv.] The irrelevance of official capacity under article 27 of the RS led to more debate, as this appeared to be in conflict with the constitutional inviolability of the Monarch, as provided in article 42, para 2 of the Constitution, under which the monarch is immune from criminal prosecution. The Council of State concluded that there was no incompatibility between the RS and article 42 of the Constitution. [Abv.]


Issues Raised during the Implementation Stage


NL government considered more urgent to adopt provisions concerning legal assistance and other forms of cooperation with the Court. The NL government therefore enacted ICC Act to ptovide Dutch government  with a statutory basis for transferring suspects to the ICC, protecting and guarding them and transporting them to the Court. The Act entered into force on July 1, 2002. [86]


Second, technical amendments were made to various Dutch laws in respect of offenses against the administration of justice of the court provided in article 70 of the Statute. As ICC is based in the NL, it is not unlikely that offenses against the court’s administration of justice may be committed in Dutch territory. Extending Dutch jurisdiction over those offenses was therefore regarded useful. In order to do so, the scope of the offenses against the administration of justice already recognized under Dutch laws was extended to cover offenses against the ICC’s administration of justice. Since many of the offenses against the administration of justice mentioned in article 70 of the Statute constitute common crimes in the NL when committed on Dutch territory, this was mainly a matter of amending a limited number of specific provisions. The Implementation Act was therefore accompanied by the Amendment Act, which was also applicable to Aruba and the Netherlands Antilles. The ICC Amendment Act entered into force on August 8, 2002. [Abv.]


Third, changes were introduced to substantive criminal law to implement the crimes under the RS. For instance, there had been a gap in Dutch criminal law that crimes against humanity committed outside Dutch jurisdiction could not be prosecuted before a Dutch court. Changes had to be introduced to make it possible to try in the NL persons accussed of such crimes. In contrast, war crimes and genocide had, for many years, been defined as criminal offenses under Dutch law, but they are in various separate pieces of legislation. [Id.]


In the initial stages of discussions on the Dutch implementing legislation, it was proposed that crimes against humanity be incorporated in the War Crimes Act of 1952. After further consideration, it was decided to adopt a new International Crimes Act to criminalize war crimes, crimes against humanity, genocide as defined in the Genocide Act of 1964 and the crimes of torture as embodied in the 1988 Act implementing the 1984 Torture Convention, [87]


In December 2000, immediately after a legislative memorandum had been sent to Parliament, a group of representatives of the Ministries of Justice, Defense, and Mofa began to draft the International Crimes Act. Throughout the drafting process this group regularly consulted external experts, mainly scholars, who constituted a sounding board. A number of organizations (Netherlands Association for the Administration of Justice, the Public Prosecution Services, the Netherlands Bar, the Netherlands Red Cross, Amnesty International, the Dutch Section of the International Committee of Jurists and the Netherlands Society of International Law) were also consulted after a first draft of the Bill had been completed. By the end of 2001, the final draft incorporated the comments made by the external experts and organizations consulted, and was sent to the Council of State. The Council was generally supportive of the Vill, though its advice led to some specific adjustment to the final text. The International Crimes Bill was introduced into Parliament on April 19, 2002. On December 3, 2002, a parliamentary committee of the House of Representatives discussed it with the Ministers of Justice. The bill was passed by the Senate on June 17,, 2003. The International Crimes Act entered into force on October 1, 2003 after it had been signed by the Queen and countersigned by the Ministers of Justice, Defense and Mofa. The legislative measures needed to implement the ICC Statute was thus completed [Id.]



The Implementation Act creates a centralized system, with the Minister of Justice as the central authority which either responds himself/herself to a request for cooperation by the ICC or forwards it to the public prosecutor (centralized in the public prosecutor’s office at the Hague District Court). In implementing the request, the public prosecutor may request assistance from colleagues elsewhere. If a judicial opinion is required during the handling of the request, the Hague District Court would have the exclusive competence to do so…The Implementation Act allows various forms of cooperation between the Netherlands and the Court, and with another state of request of the Court. Such forms of cooperation range from arrest, surrender, spontaneous provision of information and search and seizure to confiscation, telephone tapping and infiltration [88]


The surrender procedures in the Implementation Act are consistent with the RS and are comparable to those applicable to regular interstate extradition as applied by the NL. But the term ‘surrender’ is used to reflect the vertical relationship between states parties and the Court, as distinct from relationships between states, which are horizontal….the surrender provision un the Implementation Act allow for surrender both for the purposes of prosecution by the ICC and for the enforcement of a sentence imposed by the ICC. They apply to Dutch nationals as well as foreigners, and to both provisional arrest (at the request of the ICC) and arrest. The speciality principle is included; thus the Minister of Justice of the NL must give his consent if a suspect surrendered by the NL to ICC is to be transferred vy the ICC to the authorities of a third state. Detention can be discontinued or suspended by the investigating judge or the district court, or at the request of the public prosecutor or the suspect, but only if there exist urgent and exceptional circumstances and after consultation with the ICC. [89-0]


The basic principle of the ICC Implementation Act is that all requests for cooperation have to be complied with unless the Statute provides a legal basis for refusing. The extent of cooperation with investigative actions is explicitly laid out. This involves the familiar forms of assistance between states, and the same procedures apply in respect of the ICC. Examples include signing documents, examining or allowing the examination of individuals, taking statements, DNA testing, searching locations and examining computers…the only form of cooperation that is not included is compulsory transfer of witnesses to the ICC. This is because under its Statute the ICC does not have the power to detain individuals other than suspects awaiting trial and sentenced persons awaiting transfer to a state of enforcement. [90]


Although the Implementation Act (and art 103.1 RS) provides the possibility of sentence enforced by the Court in the NL, the Dutch government has not indicated its willingness to do so because, as host state, NL will have to serve as ICC’s safety net under art 103.4, in the event no other country ready to enforce the sentence…to date only Spain has declared its willingness to accept sentenced persons regardless of their nationality, with provision that the sentence shall not exceed the maximum sentence allowed under Spanish law. Andorra, Lichtenstein, Lithuania, Slovakia and Switzerland declared that they would be willing to accept the enforcement of their own citizens sentenced by the court. Switzerland declared that the same would apply for persons habitually resident in Switzerland. [91]


The drafters of the International Crimes Act were guided by three main principles: concentration, codification and practicality. The ICA seeks to concentrate existing legislation on core international crimes in a single Act and to limit jurisdiction to a specific courts. ICA is therefore not part of the General Criminal Code. At the same time, this does not mean that the ICA incorporates all international crimes. Since the Dutch Criminal Code covers crimes such as piracy, international drug trafficking and terrorism, these crimes have deliberately not been included in the ICA as they are not crimes against IHL…the principle of concentration also guided the drafters to concentrate cases in a single court, albeit in a different way. It was hoped that concentration could encourage specialization. The ICA provides that the district court in the Hague is to deal with international crimes, unless the suspect is a member of the military, in which case, he will be tried by a military court. [92]


The ICA seeks to codify current development in international criminal law, rather than to develop and refine international criminal law…it also clear, for instance, from the maintenance of the distinction between war crimes committed in the context of an international armed conflict and those of non international armed conflict. Another example is the provision of immunity, which follows the cautious approach of the ICJ in its decision of Feb 14, 2002 in the case between DRC and Belgium (also referred to as the Yerodia case)…ICA also seeks to offer a practical approach to criminalizing international crimes, defining only the crimes themselves and not, for instance, a complete set of general principle of criminal lawas was done in Part 3 of the RS. [93]


In September 2003, a former Congolese colonel seeking asylum in the NL was arrested on suspicion of, among others, torture committed during the regime of former President Mobutu. After a Dutch team had conducted investigations in Congo to gather evidence, the trial started in March 2004. He was the first foreign national to be prosecuted in the NL for international crimes committed in his home country. The former colonel is prosecuted on the basis of the Convention Against Torture Implementation Act. [Ib.]


The ICA provides for universal jurisdiction over the crimes covered. In addition to territorial jurisdiction and jurisdiction on the basis of the passive (if the crime was committed against a Dutch national) and active (if the crime was committed by a Dutch national outside the NL) nationality principle, it provides for secondary universal jurisdiction…on the condition that the person is present on Dutch territory. According to section 2, subsection 1(a) “Dutch criminal law shall apply to …anyone who commits any of the crimes in this Act outside the NL, if the suspect is in the NL”. NL may exercise a secondary jurisdiction which relates to the maxim aut dedere aut iudicare, when a suspect is found in the NL if a state with primary jurisdiction, ie, state on the territory of which the crime was committed, or the state of which the offender or the victim is a national, refrains from prosecution…the Dutch police will only be able to investigate an international crime if the suspect is present on Dutch territory. [95]


ICA has extended the mental element in three ways: i) it includes civilian superiors and those who are de facto or de jure in charge of the perpetrator; ii) it introduces a new form of criminal responsibility, making it an offense when a superior fails to prevent or punish the commission of the crime in question, a responsibility that has already been accepted in corporate criminal law; and iii) this responsibility does not remain restricted to war crimes, but will also cover crimes against humanity and genocide…the Ministry of Defense was actively involved in the drafting of the provision in the ICA on command responsibility. However, no changes have been made to military manuals, because they reflect the idea of command responsibility in general, and the obligations of the Netherlands under the first Additional Protocol 1977 in particular. [96]


ICA abolishes the statute of limitations for all international crimes covered by it, except for the least serious war crimes, for which a statute of limitation of 12 years applies. Dutch law  had already abolished the statute of limitations for the prosecution and sentencing of most grave breaches of the Geneva Conventions and for genocide. The abolition of the statute of limitations will not have retroactive effect, it will therefore not be possible to review criminal proceedings regarding crimes for which prosecution or sentence has already been precluded because of lapse of time. [97]


The Head of State and politicians are entitled to immunity under the Dutch Constitution. This constitutional provision may, however, be set aside by a special legislative procedure requiring the approval of a two-thirds majority og both Houses of the Parliament. The RS Ratification Act was approved under that procedure. As a result, the constitutional immunity of those officials cannot be invoked to prevent their surrendering to the ICC. [Abv.]


ICA  affords the Dutch courts more severe penalties than the Dutch general criminal law does for murder: fines and maximum prison sentences of 30 years (instead of 20), or life imprisonment…under general criminal law, the courts have, for some years, been able to order reparations for victims provided that the victim joins the proceedings to that end. This general possibility will apply to proceedings on international crimes as well. Under the Implementation Act, an ICC order (or any other foreign order) for reparations by a convicted person (or from his assets) to a victim must be converted into a Dutch court order [98].


International courts and tribunals have a long pedigree in the NL. In 1899, the states participating in the First Hague Peace Conference set up the Permanent Court of Arbitration. The Peace Palace was built in 1913 to house that Court, which was joined in 1922 by the Permanent Court of International Justice. After the Second World War, the latter was superseded by the ICJ as a principal organ of the UN which is also housed in the Peace Palace…In 1993, the ICTY was established in the Hague and was followed in 1994 by the ICTR. Though the latter is based in Arusha, Tanzania, its Appeals Chamber is in the Hague. [99]


ICA also makes provisions for the transit, under escort, of a person through Dutch territory to the premise of the ICC…should upon arrival of a suspect in the NL the suspect applied for asylum, ICA provides that such situation does not qualify as a valid reason for interrupting the transfer to the ICC pending an investigation of the asylum application by the Dutch authorities. On the basis of the RS, Dutch authorities have an obligation to transfer the person to ICC without delay. [101]


“The enactment and application of national implementation legislation by states parties on the basis of the RS is likely to lead to a homogeneity of national criminal justice systems for handling international crimes. Taking legislative measures to implement the Statute means bringing up to standard national legislation with respect to international crimes. This, eventually could foster an international culture of law in which there is no place for crimes such as genocide, crimes against humanity and war crimes” [103]