ECLI:NL:RBSGR:2007:BA9575, Rechtbank 's-Gravenhage, 25-06-2007, 09/750001-06  English translation
Rechtbank 's-Gravenhage — Uitspraak 
Datum: 2007-06-25 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: Judgment in the criminal proceedings against a defendant charged with war crimes, who was a former officer of the Afghan Military Intelligence Service Khad-e-Nezami. The Court acquits the defendant of the charges.

DISTRICT COURT in THE HAGUE
      CRIMINAL LAW SECTION
    
    
    
      THREE-JUDGE DIVISION
      (SENTENCE)
    
    
    Public Prosecutor's Office number: 09/750001-06
    
    The Hague, 25 June 2007
    
    
    The District Court in The Hague, giving judgment in criminal proceedings, has delivered the following sentence in the criminal case of the public prosecutor against the defendant:
    
    
      	[the defendant]
      	Born on [date of birth] in [place of birth] (Afghanistan),
      	Living at [address],
      currently in pre-trial detention in PI Utrecht - Detention Centre, location Nieuwegein in Nieuwegein.
    
    	
    
    The court hearing
    
    The hearing took place during the court sessions of 4, 5, 7, 8 and 15 June 2007.
    
    The defendant, assisted by his defence counsels Mr. G.G.J. Knoops and Mrs. J.M. Eelman, both lawyers in Amsterdam, appeared in court and was examined at the hearing.
    
    The public prosecutor Mr. Oldekamp demanded that the defendant be sentenced to a term of imprisonment of 10 years, less the time spent in pre-trial detention, based on the charges on the writ of summons under count 1 and count 2.
    
    
    The indictment
    
    After a further description of the indictment was given at the court hearing, the defendant was charged with the criminal offences as mentioned on the inserted photocopy of the writ of summons, marked A, and of the demand for further description of the indictment, marked A1.
    
    
    Jurisdiction of the Court and admissibility of the Public Prosecution Service.
    
    Jurisdiction
    
    The defence pleaded that the District Court should declare that it lacks jurisdiction in the present criminal proceedings, because it does not have the competence to bring this case to trial based on an alleged violation of Common Article 3 of the Geneva Conventions.
    
    
      In similar proceedings, by virtue of the judgments of 14 October 2005, the District Court did assume universal jurisdiction based on article 3, opening lines and under subsection 1e, of the Criminal Law in Wartime Act in conjunction with Common Article 3 of the four Geneva Conventions of 12 August 1949.
      Meanwhile the Court of Appeal of The Hague has pronounced its judgments in these cases on 29 January 2007. The Court of Appeal is also of the opinion that universal jurisdiction does exist regarding the cases in question.
    
    
    In the present criminal proceedings the District Court holds this position as well, taking into account the considerations of the Court of Appeal and the District Court, based on the following arguments.
    
    
      The legal basis for prosecution does not lie in the principles of territoriality, nationality or protection, but in the (secondary) universality principle. This (secondary) jurisdiction is only applied with great restraint by the Dutch legislator and raises questions of international legal nature because it impairs the sovereignty of the territorial state.
      For the imputed criminal offence, being a (co)perpetrator in torture, and/or allowing torture, is an offence which is qualified as a gross violation of the material norms of international humanitarian law in the four Geneva Conventions of 12 August 1949. In the Conventions a difference is made as to the nature of the conflict concerned. However, torture is not only mentioned in articles 50, 51, 130 and 147 of the corresponding Conventions, but also in  Common Article 3.
      Regarding this violation of norms, like torture, committed during an international armed conflict ("grave breaches" ), the Conventions include the obligation of penalization, set out in articles 49, 50, 129 and 146 respectively. In this manner universal jurisdiction is established. Regarding the violation of norms, like torture, committed during a non-international armed conflict ("other violations") the Conventions do not include the obligation of penalization, but a less far reaching instruction: to take measures in order to discourage these actions.
      Basically the text of the Conventions leaves the possibility to start criminal proceedings as enforcement method, as it was done in the Netherlands. The question whether a state has the judicial competence in these matters can be answered positively, if it involves its own territory, or its own citizens, being either perpetrators or victims. But in this case it concerns the exercise of secondary jurisdiction regarding a non-citizen as perpetrator outside its own national territory. In 1987 at the time of the conclusion of the Torture Convention Implementation Act, the legislator partly based the universality principle on the unbearable thought that war criminals would be able to travel freely abroad and could end up standing there face to face with their victims who meanwhile have fled to other countries. As early as 1952, the legislator established that jurisdiction without any special stipulations in article 3 of the Criminal Law in Wartime Act, also regarding violations of the stipulations of the common article 3 of the four Geneva Conventions. The question is whether international law allows Dutch criminal law to assume universal jurisdiction. Whereas the Court of Appeal is of the opinion that, in view of article 94 of the Dutch Constitution, it is not possible to test unwritten international law, the question remains whether there are written rules within the context of international law, which dictate otherwise. Following the Court of Appeal, the District Court gives a negative answer to this question.
      In this respect it needs to be pointed out that the District Court, following the District Court and the Court of Appeal in the cases mentioned above, agrees with the Public Prosecution Service and the defence, that the armed conflict in Afghanistan in the eighties of the last century, was mainly a non-international conflict between the regime in Kabul and the "Mujaheddeen", that revolted against this regime - also using arms. It's true that this regime was partly supported by Russian advisors and army divisions and participated in the armed conflict, yet this was not a conflict between two sovereign states.
    
    
    The defence now argues that indeed there are general written rules regarding international law, which exclude universal jurisdiction in relation to Common Article 3 of the Geneva Conventions. In the first place the defence has pointed out the Resolution adopted in Krakow by The 17th Commission of the Institute of International Law. From the text of the Resolution quoted by the defence, the District Court litterally quotes the following paragraph:
    
    "Universal jurisdiction may be exercised over crimes identified by international law as falling within that jurisdiction in matters such as genocide, crimes against hunanity, grave breaches of the 1949 Geneva Conventions for the protection of war victims (italics) or other serious violations of international humanitarian law committed in international or non-international armed conflict (end of italics)".
    
    
      Especially from the phrase printed in italics, the District Court can draw no other conclusion than that the experts present in Krakow were of the opinion that universal jurisdiction should also be applicable to other breaches than the so-called "grave breaches". The District Court leaves aside whether such a Resolution can be considered as a source of written law, but at the same time it does not see any support in it either for the position taken up by the defence that the Resolution excludes universal jurisdiction in relation to Common Article 3.
      Furthermore, the defence made reference to the position adopted in literature, that the concept of universal jurisdiction in the Geneva Conventions is only accepted when the case under consideration involves "grave breaches". As mentioned earlier, the Geneva Conventions do not actually create universal jurisdiction, but the texts of these treaties are not incompatible with universal jurisdiction in case of other violations in non-international armed conflicts. From the point of view that sovereign states do not tolerate intervention by other nations, it can be explained that the obligation set out in Common Article 3 is less compelling than the obligation outlined by articles 49, 50, 129 and 146 respectively. However, these treaties do not include a prohibition as such.
      In this respect it does seem relevant that since 1949 some developments can be pointed out regarding the general opinions on universal jurisdiction. In the judgment passed by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case against Tadic of 2 October 1995 (concerning jurisdiction), conclusion 83 sketches a development, by which the provisions regarding "grave breaches" (universal jurisdiction for grave breaches in international armed conflicts) are extended towards violations committed in non-international conflicts, as meant in Common Article 3. In any case - contrary to the position held by the defence - in this ruling the District Court does not see any reference points for the point of view that only in case of "grave breaches" it would be possible to interfere with national sovereignty by exercising universal jurisdiction.
    
    
    
      The defence also made reference to the judgment pronounced by the Supreme Court of the Netherlands on 18 September 2001 (AB1471, concerning Bouterse), which points out that no stipulation of international legal nature can be found, which contains the obligation to penalize unlawful acts as referred to in the Torture Convention Implementation Act with retroactive force (so before 20 January 1989).
      However, penalization (legality) refers to another matter than the question whether universal jurisdiction is authorised. Moreover, the indictment does not relate to violations of the stipulations of the Torture Convention Implementation Act. Before the above mentioned date and at the time of the period referred to in the charges, article 3 of the Criminal Law in Wartime Act, in conjunction with articles 8 and 9 of the Criminal Law in Wartime Act were in force.
      In the case against Kneševic (NJ, 1998/463), the Supreme Court indicated in this respect what the legislator actually meant by jurisdiction in relation to articles 8 and 9 of the Criminal Law in Wartime Act, which are also relevant in this case.
    
    
    The District Court has not been able to find reference points for the conclusion, that written rules in international law oppose universal jurisdiction, neither in the arguments brought forward by the defence, nor elsewhere. For that reason the Court dismisses the pleas put forward by the defence in relation to jurisdiction.
    
    
      Legality
      The defence argued that Common Article 3 of the Geneva Conventions cannot be used as a basis for the indictment. The defence argued that article 7 ECHR, and the requirements of predictability and accessibility that arise from this article, have not been met, and furthermore that Common Article 3 was not meant to be considered as a penal provision, but as an instruction norm.
      The District Court agrees with the defence that article 3 is an instruction for the parties to the convention, including the Netherlands. As indicated before, the Netherlands have complied with the obligation to take measures to guarantee the fulfillment of the norms set out in Common Article 3 regarding the treatment of "persons who are not directly participating in the hostilities", by penalizing the violation of the laws and customs of war in article 8 of the Criminal Law in Wartime Act. This last article is the penalization, Common Article 3 is the criterion.
      In as far as the defence intented to argue the legality by this argument, the District Court has the following consideration.
      Acts of torture and other crimes against humanity are actions described by Common Article 3 as violations of humanitarian norms. Violations which in case of war are described as "grave breaches". Torture is not only considered to be a violation by the four Geneva Conventions, but also by the International Covenant on Civil and Political Rights (ICCPR), which protects the rights of people not to be subjected to torture. Afghanistan is - and was at the time - a signatory to the Geneva Conventions. Since 1983, Afghanistan is also a party to the ICCPR. For that matter, it can also be assumed that torture was a criminal offence in Afghanistan during the period referred to in the charges.
      Therefore it cannot be maintained that the defendant, in the indicted period, was not aware or could not know that torture was considered a violation of humanitarian law and punishable as such.
    
    
    
      Cumulative charges
      The defence argued that the alleged violation of articles 8 and 9 of the Criminal Law in Wartime Act in this case have been charged cumulatively and not alternatively, and believes that it is one and the same: either the Public Prosecution Service chooses the option of accusing him of being a (co)perpetrator, or it chooses the construction of the co-called superior responsibility. Therefore the Prosecution Service should be barred from prosecuting this case regarding count 2, in any case concerning the charges related to [P2] and [P2].
    
    
    
      The Court concludes that the charges each constitute an independent accusation. Whereas count 1 accuses the defendant of acts of violence (actually committed), count 2 relates to the possible responsibility for these acts within the frame work of his superior responsibility, as referred to by the defence.
      From that perspective - also taking into account the opportunity principle - the Public Prosecution Service has the liberty to charge both criminal facts. Barring the prosecution regarding count 2 is out of order.
    
    
    
      Amnesty
      The defence also argued that there could be no conviction, claiming that in the mean time an amnesty law had entered into force in Afghanistan. The Court explains this argument as a plea to disallow the public prosecutor: because of the amnesty law the Public Prosecution Service would not be entitled to criminal proceedings.
      In his closing speech the public prosecutor submitted a translation of what is said to be the final text of that law adopted by the Afghan Parliament, which meanwhile - according to a message on the internet submitted by the defence - would have been signed by the President of Afghanistan. The public prosecutor stated that he did not know if the President had indeed passed this law by signing it.
    
    
    
      Although it has not been established whether this amnesty law entered into force in Afghanistan, the Court is aware of the fact that in Afghanistan discussions were held about a possible amnesty for persons who were involved in the various hostilities and armed conflicts during the past 25 years. It appeared that such an amnesty regulation is not undisputed. Opponents point out that this law has been adopted by war lords who themselves would have to fear most if they were to be prosecuted. Whatever the result of that discussion may be, the Court believes that the entry into force of such a law in Afghanistan does not automatically imply that the Dutch Public Prosecution Service is no longer entitled to start criminal proceedings against suspects who are residing in the Netherlands. However, based on the text that was produced during the hearing, the Court believes in any case that there is no general pardon for individual crimes, so the right of victims to contest these crimes remains intact.
      This also refers to the earlier considerations regarding legality. However, the Court is aware of the fact that an amnesty regulation can have great importance within the framework of the attempts to reach reconciliation and recovery of stability. This does not affect the unbearable thought that war criminals would be able to travel freely abroad and could end up standing there face to face with their victims who meanwhile have fled to other countries. This does not only involve the Afghan, but also the Dutch legal order. 
      In this respect the District Court considers that the fact that an amnesty regulation has been adopted should not be overlooked, but at the same time this does not imply that the right to prosecute should become ineffective.
    
    
    
    Acquittal
    
    The District Court declares that it has not been legally and convincingly proven that the defendant committed the offences he was accused of in the charges under counts 1 and 2, and therefore the defendant must be acquitted of those charges.
    
    For that reason the Court will withdraw the order for pre-trial detention.
    
    
      Considerations regarding count 1
      Under count 1, the defendant, is accused of being a (co)perpetrator in committing acts of violence and/or mutilation and/or cruel and inhumane treatment and/or torture against two victims, being [P1] (to be referred hereafter as [P1]) and [P2] (to be referred to hereafter as [P2]).
    
    
    The defendant denies the charges brought against him.
    
    
      Illegality of the evidence
      The defence brought forward a number of arguments to contest the legality of the evidence. The first argument was that they claimed that the statements made by [P1] had been obtained unlawfully. First of all because during the interview held by the National Criminal Investigation Department, the officers allegedly placed the name of [the defendant] into his mouth, after he had been unable to produce this name after long interrogations. Therefore, the defence claimed that these testimonies should be dismissed as they were not freely given and should therefore be considered as illegaly obtained evidence.
      Moreover, the defence pleaded that the photo identifications used for the various witness interviews by the police, were not carried out according to the standing regulations.
    
    
    The Court concludes that both the directed questioning regarding [the defendant] during the interview with [P1] and other witnesses, while the name had not been mentioned before, and the way in which the photo identifications took place, do not deserve a standing ovation, but that should not result in these testimonies being excluded from the evidence - also taking into account the criteria set out in subsection 2 of article 359a of the Code of Criminal Procedure.
    
    
      Reliability of the evidence
      In its oral pleadings the defence also argued that a number of witness statements cannot be used as evidence on account of not being sufficiently reliable.
      In this respect the Court considers the following.
    
    
    
      [P1] gave evidence several times and his statements have been inluded in the FIJT file. He was interviewed by the National Criminal Investigation Department on two occasions. One time in the RL5051-investigation ([P3] and [P4]) on 31 January 2005 and another time on 27 March 2006 in the FIJT-investigation ([name of defendant]).
      Additionally, the case file contains the statements he made before the examining judge in the RL5051-investigation on 30 May 2005, 4 and 5 July 2006, as well as on 9 January 2007 and in the FIJT-investigation on 25 February 2007.
    
    
    Both the District Court and the Court of Appeal, in their sentences (District Court) dated 14 October 2005 and rulings (Court of Appeal) dated 29 January 2007 respectively, consider it proven that acts of violence, cruel (inhuman) treatment and torture were committed against the victim [P1], as charged in the criminal cases against [P3]and [P4]. The Court does not want to detract from this judgment and is also convinced of this fact itself.
    
    At this stage, the Court needs to answer the question whether it can be proven that defendant [the defendant] was involved in these acts of physical violence as perpetrator or co-perpetrator.
    
    
      [P1]'s statements
      In his statement made before the National Criminal Investigation Department in 2005, the witness [P1] testified about the imputed offences and according to [P1], [P4] and the other interrogators were fully responsible for these acts. The name [of the defendant] was not mentioned at all during this interview. The scars on his shinbones, shown by the victim, were caused by the kicking of [P4] and his interrogators. Also during the examination before the examining judge on 30 May, [P1] stated that according to him [P4] was the officer who was present during the interrogations and maltreatments and who was the one to give instructions, and the name [of the defendant] was not mentioned either.
      However, during the interview held by the National Criminal Investigation Department on 27 March 2006, in which the reporting officers told [P1] that they had some additional questions about his arrest and detention and in relation to [the defendant], they asked him: "What do you know about [the defendant]?"
      Then [P1] answered that [the defendant] was the person who kicked him and hit his shinbone and again he showed the scar tissue on his shinbones. As a consequence of these acts of violence he allegedly made a confession and never saw [the defendant] again. According to [P1], [the defendant] had a rather dark skin colour and was of medium height.
      The testimony made by witness [P5] does not provide any clarity either. He was only interviewed after [P1] had been confronted with the name [of the defendant] and in his interview before the examining judge on 28 February 2007 he did not provide more clarity as to the question whether [P1] had already mentioned this name before. Finally, he indicated that this would have taken place shortly after his detention or after the Mujaheddeen came into power, but earlier on during the examination he refused to testify about this matter. He added that two days before appearing before the examining judge [P1] had told him by telephone, that the examining judge wanted to talk to him today and that this was the first time he heard this name.
    
    
    
      Because of the procedures regarding [P1]'s testimonies, and the ever changing statements made by this witness and the fact that no supporting evidence is available, the Court did not come to the conclusion that [the defendant] was the person who indeed committed one or more of the acts of violence or other criminal acts as charged.
      As for being a co-perpetrator regarding the charged offences, it needs to be proven that these actions were carried out by [the defendant] consciously and in cooperation with [P3] and/or [P4].
      None of the statements in the case file, made in relation to the unlawful acts that were committed against [P1], have shown clearly that [the defendant] was actually involved in these acts in a way which is required by case law for being considered a co-perpetrator, and therefore this cannot be considered to be a proven fact.
    
    
    
      [P2]'s statements
      [P2] (witness 10) testified before the National Criminal Investigation Department on 29 May 2006. Later on, at the request of the defence, he was heard by the examining judge on 2 March 2007. 
      [P2] stated first to the criminal investigators, that he was arrested in 1362. He illustrated this fact by stating that he was arrested about 18 months before [P1]. After his arrest, he was transferred from Bakhram to the Military Intelligence Service (MIS) in Kabul. Upon his arrival he was escorted to his cell by a captain (which he was able to tell by the distinctions on his uniform), who told him: "sleep well in here". The next morning he was received in a room by [P6]. Later, other prisoners told him that there was a man who was working in the MIS building, who was as mighty as God. They said his name was [name 1]. He testified furthermore that he had been repeatedly interrogated and tortured by [P6].
    
    
    
      Like with [P1], the reporting officer poses the question whether the witness could testify about a person named [the defendant], without the witness having mentioned this name earlier. Subsequently, the witness stated that he was a powerful man, that he tortured prisoners and that he was very cruel. He claimed he had discussed this with fellow prisoners. During the interrogations carried out by [P6], [the defendant] used to enter the interrrogation room quite frequently. During one of the interrogations, [the defendant] said allegedly: "Hit him very hard". He described [defendant] as being a man of a stocky build and that his face had a large wide jaw.
      When he was shown photographs and asked if he recognised any of the persons on them, he stated that the persons on photographs number 2 and 5 looked familiar. According to him they worked for the MIS. However there is no positive identification.
    
    
    When he was heard by the examining judge, [P2] stated that he was arrested at the end of 1364. He claimed to have been mistaken when he mentioned the year during his first examination. Upon his arrival at the MIS in Kabul, it was [the defendant] who ordered to take him to his cell. He was interrogated by [name 2], [P3]'s deputy and by [P6].
    
    
      Subsequently, [P2] stated that [name 2] entered the room from time to time during the interrogation and if the interrogating officer told him that he refused to make a statement, he would hit [P2] hard with his fist and would say to the interrogator: "take his statement". Then the public prosecutor asked him if [name 2] was the same person as [the defendant]. The witness confirmed this. He called him [name 2], because he had a surname. [name 2] was his surname and he was known under this name.
      He was famous there and was addressed as "tsaranwal" (public prosecutor) [name 2]. He was public prosecutor. The witness was not able to mention his first name.
    
    
    During the examination before the examing judge, the witness stated that [P1] was the one who took him from Bakhram to the interrogation in Kabul.
    
    According to the Court, this combination of statements is not sufficiently reliable either to come to the conclusion that the defendant was involved in the indicted offences against [P2] as (co)perpetrator. Both testimonies made by the witness show large discrepancies and unclarities, for instance with regard to the time of his arrest, the name of the defendant, the position held by the defendant and the different roles attributed to the defendant in relation to the interrogations, and not recognising the defendant during the photo identification. In addition, the role of [P1] in presenting this witness, in which he was instrumental according to this witness, has not become quite clear.
    
    In view of the above considerations, the District Court decided to acquit the defendant of the charges under count 1.
    
    
      Considerations regarding count 2: Superior responsibility
      Introduction
      The District Court is of the opinion that at the time of the charged offences 'superior responsibility' for war crimes committed in a non-international armed conflict resulted from international customary law which was developed in the years following the Second World War. This judgment is also based upon the ruling pronounced by the Appeals Chamber of the ICTY in the case against Hadžihasanovic, which shows that the Appeals Chamber is of the opinion that already at the time of the conclusion of the two Additional Protocols to the Geneva Conventions in 1977, in relation to international as well as non-international armed conflicts, superior responsibility resulted from international customary law.
      This position of the Court implies that the offences committed by the defendant during the indicted period can be judged according to article 9 of the Criminal Law in Wartime Act. This article should be explained according to international (customary) law regarding the so-called superior responsibility. This (automatically) means that the Court will also take into consideration the legal precedents of ad-hoc tribunals, also in as far as they require the fulfillment of the condition of 'effective command and control'. 
    
    
    With regard to the question whether the defendant carried 'superior responsibility'  for the war crimes charged in the indictment, the Court wishes to state the following.
    
    
      Established facts
      Taking into account the judgment pronounced by the Court of Appeal of The Hague on 29 January 2007 regarding this matter, the District Court considers it to be a proven fact that the Head of the Investigation and Interrogation Department ([P4]), in conjunction with others, committed the acts of violence, cruel and inhumane treatment and torture against the victim [P1]. The Court concludes that conclusive evidence has shown that in these offences [P4] was assisted by persons who were employed by the Investigation and Interrogation Department of the Military Khad.
      Furthermore the Court concludes [P 9] was submitted to physical violence, cruel and inhumane treatment and torture during interrogations carried out by the Military Khad.
      Moreover, and this does not require further explanation, conclusive evidence has shown that within the Military Khad, the Head of the Investigation and Interrogation Department ([P4]) was in command of the employees of that department and that the Director of the Military Khad ([P3]) was in command of the Investigation and Interrogation Department. Finally, based on his testimony during the court hearing that he was transferred to Kunduz during the regime of Najibullah, it can be established that the defendant was one of the deputies of the Director of the Military Khad, in any case at the time of the indicted offences.
    
    
    
      Framework and questions to be answered
      The case file contains several witness statements regarding the question of how the positions of [P4] and the defendant within the Military Khad were related to each other. The District Court believes that in answering this question, the Court should especially take into account those statements that were made by persons who were able to testify about this matter because they themselves were working for or at the Military Khad in Kabul, either as employee or as public prosecutor, and who were persons of whom it could not be said - and this has not been claimed by the defence either - that they could have an interest in making a false representation of the facts. In order to establish whether the defendant had 'effective command and control', the Court will study the following questions:
      a) What was the defendant's position in the chain of command in relation to [P4]?
      b) As deputy (one of the deputies) to the Director of the Military Khad, did the defendant have the authority to control the Head of the Investigation and Interrogation Department ([P4])?
      c) As deputy (one of the deputies) to the Director of the Military Khad, did the defendant have the authority to control the Head of the Investigation and Interrogation Department, in any case [P4] personally?
      d) Did the defendant have effective control and command, in any case was it possible for him to have effective control and command over [P4]'s activities?
      e) (As deputy (one of the deputies) to the Director of the Military Khad), did the defendant have effective command and control over the activities and decisions of the Head of the Investigation and Interrogation Department [P4] with regard to the victims [P1], [P9] and [P2], referred to in the charges?
    
    
    
      Answers to the above questions
      Re a) The observation that the defendant was higher ranked than [P4] at the time of the offences he is indicted for, results from the statement made by the defendant during the court hearing and is also supported by the testimony given to the examing judge by the former Afghan public prosecutor [P10] (EJ file, page 129, nr. 32).
    
    
    Re b) The observation that the defendant, based on his position in the chain of command, was authorised, as deputy (one of the deputies), to have control over the Head of the Investigation and Interrogation Department of the Military Khad, can be concluded from the statement made before the examining judge by the afore mentioned former Afghan public prosecutor [P10] (EJ file, page 127, nr. 11), as well as the statement made before the examining judge by the afore mentioned former Afghan public prosecutor [P11] (EJ file, page 335, nr. 12). These statements are supported by the statement made to the criminal investigators by [P12], who used to be employed at the Investigation and Interrogation Department, mentioning that the defendant was certainly authorised to visit the Interrogation Department because his position was high enough to do so (G-file, page 276, fifth paragraph). Furthermore, [P13], who held an executive position within the Military Khad, testified to the criminal investigators that it was possible for the Director and his deputies to be present at the interrogations (G-file, page 269, second paragraph).
    
    Moreover, also [P3] testified to the examining judge that it could be possible that the defendant stopped by the interrogation rooms to exercise control (page 138, nr. 7). This statement implies that the defendant did have this kind of authority.
    
    Re c) Whether the defendant, on behalf of his position as deputy (one of the deputies), also had the task to exercise control over [P4] could be concluded from the testimonies given to the examining judge by [P14], who used to be an employee at the Military Khad in Kabul. This witness testified about the events that took place in 1984, whereby the defendant supervised the interrogations (page 207, nr. 8) and that the defendant was the supervisor over [P4] (page 214, nr. 69). [P10] testified that he heard that the defendant had been appointed with the purpose to keep an eye on the Khalqi's, including [P4] (page 126, nr.7). Furthermore the public prosecutor attached special importance to the place where the office of the defendant was located. At the court hearing, the defendant admitted that he was the only deputy who had his office in the same building as [P4] on the premises of the Military Khad; their offices were even located on the same floor. This last fact was also confirmed before the examining judge by the body guard, cleaner and driver of the defendant, [P15] (page 272, nr. 9). But all of this is not enough to provide a convincing answer to question c). For the witness [P14], who at the time worked at section 2, only based his statements on what he observed during the events in 1984 (see hereafter), almost a year and a half before the events referred to in the charges. Furthermore we can put question marks to the value of the testimony rendered by Wahid regarding the task of the defendant, stating that he had to keep an eye on [P4]. From such an instruction of a more spying nature - if that was the case - it does not automatically result that the defendant also had the task to exercise control over other matters than [P4]'s loyalty. In addition, during the court hearing the defendant pointed out the possibility that during the witness examinations, which all took place through the intervention of an interpretor, the difference between the 'Investigation and Interrogation Department' and the 'interrogation rooms' was not made sufficiently clear.
    
    Re d) With regard to the defendant's actual involvement in the activities of [P4], the same [P14] testified extensively to the examining judge about the role of the defendant during the interrogations of some ten persons that had been arrested on the occasion of a bomb attack at the airport (page 210, in the middle, and onwards). The Court assumes that this refers to the attack at the airport of Kabul on 31 August 1984. [P14] stated that (mostly outside the interrogation rooms) the defendant was in charge of the interrogations and gave the necessary instructions (page 211, nr. 48), even for the administration of electricity (page 214, nr. 71). [P14] also testified that [P4] received instructions from the defendant (page 214, nr. 73). As mentioned before, this witness statement refers to a situation of more than one year before the period under discussion in the charges. At the same time the question rises what value should be attached to this statement, in view of the fact that eventually the defendant himself - as a suspect in the same case - was held prisoner by the Military Khad.
    
    
      To answer questions d) and c) the following could also be relevant.
      In different witness statements it becomes apparent that frequent meetings took place between the Director of the Military Khad, his deputies and the Department Heads (see for instance the statements given to the criminal investigators by [P13], [P12] and [P17]). Additionally, there were regular 'tripartite consultations' between the Director of the Military Khad, a deputy and the Head of the Investigation and Interrogation Department. Regarding this last type of consultations, the defendant stated during the court hearing that he did participate in them in as far as it concerned his own files. [P13] testified to the criminal investigators that the Director of the Military Khad and his deputy took decisions about transfers to the Head of the Investigation and Interrogation Department and that the Director of the Military Khad, his deputy and the Head of the Investigation and Interrogation Department coordinated the files in tripartite consultations (G-file, page 268, top section). This procedure is confirmed by the statement made before the examining judge by [P3], that he discussed information about deserters with his deputies (page 136, nr. 4). Moreover, [P13] testified that the Head of the Investigation and Interrogation Department informed the Director of the Military Khad and his deputies about the progress of the interrogations of the person under arrest to whom the file applied (G-file, page 269, top section). The statements just referred to, including the one made by the defendant himself, lead to the conclusion that the defendant must have been involved in the activities of [P4]. The 'tripartite consultations' mentioned above, could have been about little else than the interrogations of the arrested persons, since there are no indications that [P4] was involved with anything else within the Military Khad.
    
    
    
      However, the cited statements do not take away the lack of clarity about the position held by the defendant within the Military Khad and especially in relation to [P4]. In this respect the Court would like to point out the following.
      Apart from the lack of clarity about the number of deputies to the Director of the Military Khad, the question rises why the defendant would have been the second deputy and what that position implied. Before the examining judge, [P3] testified that, according to the job instructions within the organisation, there was no such position as the 'second deputy', but that some people used to call the defendant by that title. There are no statements or documents in the file that take away this lack of clarity. Apparently job instructions existed, but their contents, who or what authority issued them, was not investigated any further in this case. On the contrary, the testimonies in the case file are very contradictory with reference to the role of the different deputies. The case file does not provide a uniform answer to the question if there was 'hierarchic' replacement within the chain of command (in the absence of the Director the first deputy, in his absence the second, etc.) or that there was substitution within the sphere of activities of the Military Khad. If the latter was the case, then this could have consequences for the question whether the defendant had 'control' regarding all interrogations or only regarding those interrogations concerning the files he was in charge of at that time. It remains unclear what the internal relationship between the deputies and the Director of the Military Khad was like. The Court believes that insight into this matter is indispensable to answer that last question.
    
    
    
      Re e) The observation that the defendant did actually have control over the activities and decisions of [P4] could be concluded from the statement made by [P3] before the examining judge, to the effect that he and his deputies worked together, that if he was not present his first deputy would substitute him, that he listened to the opinions of all deputies, that the deputies were allowed to indicate if there was something they did not want to do and were able to take their own initiatives and handle matters without his consent, except for very important matters (page 137, nr. 5).
      However, in the opinion of the Court the above mentioned lack of clarity is not taken away by this statement. The Court believes that clarity is needed especially for answering the question whether the defendant actually had control over the activities and decisions of the Head of the Investigation and Interrogation Department [P4] with regard to the victims referred to in the charges. In the above, the Court has already given a judgment about the reliability of the testimonies rendered by [P1] and [P2] concerning the direct involvement of the defendant in their interrogations. Only [P 9] mentioned the name of the defendant, without being asked for it, as the person being present at a conversation that would have taken place shortly after his arrest. Although afterwards this witness made very alternating statements about the course of that conversation and the roles of the different participants, [P4] and the defendant. Therefore, it is not possible to attach sufficient value to this statement in order to determine whether the defendant had control during the interrogations of the afore mentioned victims.
      In addition, the following argument is also important.
      The criminal proceedings against the defendant refer to offences allegedly committed more than twenty years ago in a country torn apart by political, religious and ethnic disputes and by acts of violence. Many of those disputes still exist today. This fact, but especially the lapse of time, calls for prudence when studying the witness statements. This is even more important because it concerns events in a society, which in all areas - cultural, technical, economical and political - is so totally different from the Dutch society, that the Court can hardly relate anything to facts and circumstances 'that are generally known' and to understanding of common organisation structures and relations, so therefore the Court is obstructed in their assessment of the witness testimonies.
      However, the Court realises that the investigators of the National Criminal Investigation Department, the Public Prosecution Service and the public prosecutor, as well as the defence counsels and the examining judge, must have had to deal with the same handicap.
      Apparently, the criminal investigation was mainly focussed on the question if and to what extent the defendant could be accused of being involved in the cruelties that took place. This question, which is dealt with in count 2 of the charges, does not seem to have been the primary subject of the investigation, apart from the fact whether such an investigation could have produced more concrete information than we have at present. For example, it has become clear that written sources are not, or hardly available.
    
    
    
      Conclusion
      Because of this need for cautiousness and the existence of the above mentioned handicaps, the Court has come to the following conclusion.
      The defendant was one of the deputies to the Director of the Military Khad (Khad-e-Nezami), an organisation that in those days committed violations of human rights on a large scale, like torturing prisoners. It can be assumed that the defendant was closely involved in these practices. Nevertheless, it can not be established with adequate certainty, that the defendant was in a position to exercise effective command and control over the Head of the Investigation and Interrogation Department in all cases and under all circumstances. Although in the chain of command he was superior to [P4], there is still a lack of clarity about the fact whether the defendant was at any point in time in a position to exercise 'effective command and control' over the Military Khad as deputy to [P3] and likewise over the Investigation and Interrogation Department, a position that was undeniably held by [P3].
      For that reason it cannot be excluded that the defendant was not in a position to take disciplinary action against the responsible persons for the acts of violence committed against the victims referred to in the charges. In other words: the Court is of the opinion that the question whether the defendant had 'effective control' cannot be answered affirmatively with a sufficient degree of certainty.
      Therefore, the Court believes that one of the most important requirements necessary to be able to give an affirmative answer to the question whether the defendant carried 'superior responsibility' for the war crimes he is charged with, has not been fulfilled.
      This can only lead to the conclusion that the defendant should be acquitted of the offences he was charged with under count 2.
    
    
    Taking into consideration this ruling regarding counts 1 and 2, the Court will leave the other defence pleas and further points of view in relation to the evidence undiscussed.
    
    
    
    
    
    Court decision.
    
    The District Court,
    
    concludes that it has not been legally and convincingly proven that the defendant committed the offences as charged under counts 1 and 2 and therefore decides that the defendant must be acquitted of those charges;
    
    terminates the order for pre-trial detention of the defendant.
    
    
    
    
    
    
    This judgment was passed by
    
    
      mr. Poustochkine			Chairman,
      mr. De Ruiter and mr. Glass			Judges,
      in the presence of mr. Van de Vrede		Clerk of the court,
      and was pronounced at the public hearing of this Court on 25 June 2007.
    
    
    
    [End of translation]