Uitspraken

The appeal has been lodged by the defendant. On behalf of the defendant, R.J. Baumgardt and I.N. Weski, both of whom are attorneys-at-law in Rotterdam, have lodged a statement of grounds of appeal in cassation. The statement is attached to this judgment and forms part of it.

The Advocate General E.J. Hofstee has recommended dismissal of the appeal in cassation.

Counsel for the defendant have responded to this in writing.

having aided and abetted the joint perpetration of violations of the laws and customs of war which resulted in death or inhuman treatment and/or plundering and/or rape, committed on multiple occasions,

which aiding and abetting consisted of intentionally:

- supplying arms and ammunition to C. Taylor and/or his armed forces;

- making available lorries and pick-up trucks as well as an [C] camp or meeting place to Taylor and/or his armed forces;

- making available his own personnel to take part in the fighting;

- threatening his own personnel with dismissal if they refused to take part in the fighting.

The Court of Appeal held as follows in connection with the admissibility of the case brought by the Public Prosecution Service:

"Admissibility of the case brought by the Public Prosecution Service

A. Liberian amnesty scheme
Defence counsel has argued – in brief – that the case brought by the Public Prosecution Service should be declared inadmissible in respect of all charges, since an "Act to grant immunity from both civil and criminal proceedings against all persons within the jurisdiction of the Republic of Liberia for acts and crimes committed during the civil war from December 1989 to August 2003" dated 7 August 2003 (below: the Liberian amnesty scheme) is in force. As this amnesty scheme is directly applicable to the crimes with which the defendant has been charged, defence counsel argues that the defendant should not have been prosecuted (or that his prosecution should have been discontinued) by the Public Prosecution Service, or in any event that the same conclusion can be drawn on the basis of the principle of equality of treatment, the principle of protection of legitimate expectations and/or the absence of jurisdiction.

A.1 The Liberian amnesty scheme and the right to prosecute
The Court of Appeal notes as follows in relation to the Liberian amnesty scheme.

During her oral pleadings, defence counsel submitted the above-mentioned Liberian amnesty scheme. Defence counsel attached to it an affidavit of attestation dated 14 February 2017. These documents show that the Liberian amnesty scheme was approved by the then President of Liberia on 7 August 2003 and published by the Liberian Ministry of Foreign Affairs on 8 August 2003. The affidavit was attached to demonstrate that the Liberian amnesty scheme is valid under Liberian law and has not been formally revoked in the intervening period.

As Charles Taylor resigned as President of Liberia on 11 August 2003, he approved this amnesty scheme shortly before leaving office.

The Comprehensive Peace Agreement (CPA) took effect soon after the publication of the Liberian amnesty scheme, namely on 18 August 2003, following negotiations in Ghana between the government (GOL) and its opponents (LURD and MODEL). This peace agreement also recommended the creation of the National Transitional Government of Liberia (NTGL). This transitional government was broadly composed of representatives of the parties to the conflict, political parties, civil society organisations and the 15 counties (districts) of Liberia.

Article XXXIV of the CPA provides that the NTGL:

"Shall give consideration to a recommendation for general amnesty to all persons and parties engaged or involved in military activities during the Liberian civil conflict that is the subject of this Agreement."

Article XXXV (c) of the CPA provides that:

"For the avoidance of doubt, relevant provisions of the Constitution, statutes and other laws of Liberia which are inconsistent with the provisions of this Agreement are also hereby suspended."

Article XXXV (e) of the CPA provides that:

"All suspended provisions of the Constitution, statutes and other laws of Liberia, affected as a result of this agreement, shall be deemed to be restored with the inauguration of the elected Government by January 2006. All legal obligations of the transitional government shall be inherited by the elected government."

Article XIII of the CPA of 18 August 2003 provided for the establishment of a Truth and Reconciliation Commission to address issues of impunity.

The Truth and Reconciliation Commission (TRC) was established by Act of 10 June 2005. Point (g) of Article VII (Functions and Powers) of the Truth and Reconciliation Commission Act (TRC Act) stated as follows:

"(...) provided that amnesty or exoneration shall not apply to violations of international humanitarian law and crimes against humanity in conformity with international laws and standards." (all underlining above added by the Court of Appeal)

Article II of the TRC Act contains definitions of "human rights violations" and "violations of international humanitarian law".

From the provisions of article VII of the TRC Act quoted above, the Court of Appeal infers that the Transitional Government (NTGL) apparently decided not to introduce a general amnesty.

In 2009, the Truth and Reconciliation Commission published a report containing recommendations on amnesty and prosecution of offences committed during the civil war. These were offences to which the Liberian amnesty scheme cited by the defence would also apply.

A.1.1

On the basis of the facts and circumstances described above at A.1. the Court of Appeal concludes as follows.

The Liberian amnesty scheme was approved by Charles Taylor, the then President of Liberia, on 7 August 2003, which was one of the last days of his presidency. On 11 August 2003, i.e. four days after giving his approval, Taylor transferred power to the then Vice President Moses Blah and left or fled from Liberia.

When the amnesty scheme was introduced during the then rule of Charles Taylor, peace talks were already being held in Ghana and all parties involved were thus discussing how and in what circumstances amnesty would be granted.

It is apparent from the Comprehensive Peace Agreement (CPA), which came into force several days later, that the parties agreed that the Transitional Government (NTGL) should consider introducing a general amnesty scheme. It also explicitly provided for the establishment of a Truth and Reconciliation Commission (TRC), which would be expressly authorised to make recommendations regarding amnesty or prosecution.

Article VII, section 26, point g of the TRC Act explicitly provides that recommendations for amnesty would not apply to "international crimes", such as the war crimes with which the defendant is charged.

No reference is made to the Liberian amnesty scheme mentioned by the defence either in the CPA or the TRC Act or in a subsequently published TRC report.

A.1.2
The Court of Appeal notes first of all that there is nothing in the case file or the proceedings at the court hearings to suggest that the Liberian amnesty scheme was invalid or was formally withdrawn or formally rendered inoperative at some point.

However, from the manner in which the Liberian amnesty scheme was established and the choices subsequently made and steps taken by (among others) the Transitional Government (NTGL) and the Truth and Reconciliation Commission (TRC), the Court of Appeal concludes, together with the Advocates General, that although the scheme may have been in force at a certain time, it did not have (or no longer had) formal legal force owing to the conclusion of the CPA and the establishment of the Truth and Reconciliation Commission (TRC). After all, the power to make recommendations to the government about prosecution or amnesty with regard to crimes committed during the second civil war passed to the Truth and Reconciliation Commission (TRC). Moreover, recommendations to grant amnesty for war crimes or crimes against humanity were expressly excluded in the TRC Act.

These findings are not changed by defence counsel's submissions that the Supreme Court of Liberia held in a judgment that the TRC had exceeded its powers in certain respects, that a commission member of the TRC had explicitly mentioned the Liberian amnesty scheme in a dissenting opinion on that judgment, that there had been (or was still) a debate about the scope of the TRC's powers and that two commission members did not sign the TRC report dated 30 June 2009, whatever the merits of these submissions may be.

A.1.3
The Court of Appeal also notes, for the record, that even if it has to be assumed that the Liberian amnesty scheme had formal legal force (for a short period) and applied to the defendant as well, amnesty or entitlement to amnesty for war crimes would be contrary to international law and should therefore be excluded.

The Court of Appeal believes that under international law, for example articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), there is a positive obligation to institute an effective (criminal) investigation in cases where there is a suspicion of war crimes or crimes against humanity and, if necessary, to prosecute such crimes. Granting amnesty for war crimes and crimes against humanity is therefore not compatible with international law. An amnesty such as this one, which would exclude a prosecution brought in consequence of the above-mentioned positive obligations, would therefore constitute a violation of the ECHR (except in special circumstances, of which the Court of Appeal has not seen any evidence in this case). Accordingly, the Court of Appeal considers that, on the basis of international law, a national amnesty scheme which excludes prosecution for war crimes or crimes against humanity is incompatible with the obligation under international law to institute prosecution for such crimes.
Any such amnesty scheme is therefore not applicable.

Indeed, this is also a direct consequence of UN Security Council Resolution 1674 (2006), which emphasises the responsibility of States to comply with their obligation to end impunity and to prosecute those responsible for war crimes and crimes against humanity.

In reaching this finding, the Court of Appeal has taken into consideration that the amnesty scheme in question was not created as part of the peace process, but was instead drawn up by the then government of Charles Taylor, under whose rule the crimes with which the defendant has been charged occurred, namely shortly before Mr Taylor's more or less forced departure from Liberia.

This is why the Court of Appeal believes that, even if it has to be assumed that the Liberian amnesty scheme had formal legal force (whether for a short period or otherwise) and also that the scheme is (or would have been) applicable to the defendant in Liberia, this does not mean that the Public Prosecution Service in the Netherlands has lost the right to prosecute or continue to prosecute the defendant.

A.2 The Liberian amnesty scheme and the principles of equality of treatment and protection of legitimate expectations

As regards the argument based on the principles of equality of treatment and protection of legitimate expectations, the Court of Appeal holds as follows.

Under the discretionary principle laid down in article 167, paragraph 1 of the Code of Criminal Procedure, it is up to the Public Prosecution Service to decide independently whether prosecution should take place following a criminal investigation. According to current case law, the decision to prosecute lends itself to substantive judicial review only to a very limited extent, since the sole ground on which a prosecution brought by the Public Prosecution Service can be declared inadmissible is that instituting or continuing the prosecution would be incompatible with the principles of due process (in so far as relevant here, the principles of equality of treatment and protection of legitimate expectations) as no member of the Public Prosecution Service could reasonably have concluded that prosecution or continued prosecution would serve any interest protected by enforcement under the criminal law. As this criterion necessitates judicial restraint, the reasoning given for any decision to hold that the case brought by the Public Prosecution Service is inadmissible must meet stringent requirements. This involves weighing the Public Prosecution Service's position on the interest served by the present criminal prosecution against the circumstances submitted by the defence, which are intended to show that the decision to prosecute is contrary to the principles of equality of treatment and protection of legitimate expectations, as argued in this case.

A.2.1

Violation of the principle of equality of treatment occurs only where equal cases are treated unequally and there is no reasonable and objective justification for this unequal treatment.

The Court of Appeal considers that it has not been argued or proven that Dutch citizens accused of crimes such as those with which the defendant has been charged have not been prosecuted on account of an amnesty granted under the Liberian amnesty scheme (or an entitlement to such an amnesty). The Court of Appeal therefore considers that the existence of equal cases involving the defendant and one or more unidentified third parties has not been demonstrated.

A.2.2

As regards the submission based on the principle of protection of legitimate expectations, the Court of Appeal holds that such a submission can succeed only if the prosecution has been instituted or continued after statements (or comparable acts) by or attributable to the Public Prosecution Service have given the defendant a legitimate expectation that he will not be prosecuted or that the prosecution will be dropped. However, as a general rule a legitimate expectation cannot be founded on statements made or acts performed by officials in the Netherlands who have no authority regarding the decision on whether or not to prosecute (or continue a prosecution).

In the Court of Appeal's opinion, it has not been shown that definite undertakings were at some point given to the defendant that he would not be prosecuted for the offences with which he was charged. The Court of Appeal also considers, in view of what has been held above at A to A.1.3, that the defendant could not have derived a legitimate expectation from the Liberian amnesty scheme that he would not be prosecuted by the Dutch Public Prosecution Service or that any prosecution would be dropped.

(...)

A.7 Conclusion

In view of everything that has been held above, the Court of Appeal dismisses the defences put forward by defence counsel that are based on the Liberian amnesty scheme and intended to obtain a declaration that the case brought by the Public Prosecution Service is inadmissible."

The grounds of appeal cannot result in cassation. In view of section 81, subsection 1 of the Judiciary Organisation Act, no further reasons need to be given for this finding since the grounds of appeal that have been filed do not warrant the answering of questions of law in the interests of the uniform application of the law or the development of the law.

This is because the grounds of appeal concern objections raised on appeal in cassation to matters on which the Court of Appeal gave a clear and correct answer, or submissions which, in essence, simply repeat what was said before the Court of Appeal and on which the Court of Appeal gave a factual decision which is not manifestly unsound and has been adequately reasoned. In his advisory opinion the Advocate General has also explained at length and in detail why all these submissions by the defence do not warrant setting aside the judgment of the Court of Appeal.

This judgment has been given by the Vice President of the Supreme Court W.A.M. van Schendel as presiding judge, and by Justices A.J.A. van Dorst, V. van den Brink, A.L.J. van Strien and M.T. Boerlage, in the presence of H.J.S. Kea, Acting Clerk of the Court, and pronounced in open court on 18 December 2018.