Gerechtshof 's-Gravenhage, 16-07-2009, BK8758, 22-004581-07 .a

TRANSLATION IN ENGLISH OF LJN BJ2796

Judgment

Given in the appeal from the judgment of 25 June 2007 by The Hague district court in the criminal proceedings against the defendant:

1. Investigation of the case

This judgment is given following the proceedings at first instance and the appeal hearings held before this court on 28 May 2008 and on 23, 24, 25, 26 March 2009, 8 and 22 April 2009, 13 and 27 May 2009, and 2 July 2009 (on each occasion adjourned).

The Court of Appeal has taken cognizance of the application submitted by the Advocate General and of the evidence submitted by and on behalf of the defendant.

2. Indictment

The charges laid against the defendant - after the wording of the indictment was modified in accordance with article 314a of the Code of Criminal Procedure - are as follows:

Count 1

That at one or more times in or around the period from 1 January 1981 to 1 January 1987, in Kabul, or in any event in Afghanistan,

he did, together and in association with one or more other persons, or alone, (on each occasion) violate the laws and customs of war,

this offence / one of these offences (on each occasion) having caused serious bodily injury to one or more persons and/or

this offence / these offences (on each occasion) having involved the joint commission of acts of violence against one or more persons,

consisting in the fact that the defendant and/or his co-perpetrator(s) then and there, in breach of

international customary law and/or

the provisions of 'common' article 3 of the Geneva Conventions of 12 August 1949,

as a member of the military intelligence service (the KhAD-e-Nezami) of Afghanistan, or in any event as an official of the public authorities, belonging to one of the warring factions in a non-international armed conflict within the territory of Afghanistan,

did on several occasions commit acts of physical violence and/or mutilation and/or cruel and/or inhuman treatment and/or torture, on one or more persons who was/were not then taking any direct part in the hostilities (namely one or more civilians and/or those placed hors de combat by detention or some other cause),

namely persons including [victim 1] and/or [victim 2] (the son of [name of the father of victim 2]),

which acts of physical violence and/or mutilation and/or cruel and/or inhuman treatment and/or torture consisted inter alia of the following:

the defendant, acting together and in association with his co-perpetrator(s), or alone,

on one or more occasions in or around the period from 1 December 1985 to 1 March 1986, in or near the premises of the KhAD-e-Nezami in Kabul, or in any event in Afghanistan,

causing the above-mentioned [victim 1] pain and/or serious bodily injury

and/or

on one or more occasions in or around the period from 1 December 1985 to 1 June 1986, in or near the premises of the KhAD-e-Nezami in Kabul, or in any event in Afghanistan,

causing the above-mentioned [victim 2] pain and/or serious bodily injury

(section 8 of the Wartime Offences Act)

Count 2

That members of the KhAD-e-Nezami, the Afghan military intelligence service, in any event a person or persons, (all) working for and/or subordinate to the defendant [name of defendant] (and his co-perpetrator(s)),

on one or more occasions in or around the period from 1 January 1981 to 1 January 1987, in Kabul, or in any event in Afghanistan, did together and in association with one or more others, or alone,

(on each occasion) violate the laws and customs of war,

this offence / these offences (on each occasion) having caused serious bodily injury to one or more persons, and/or

this offence / these offences having involved (on each occasion) the joint use of violence against one or more persons, or the use of violence against a sick and/or wounded person,

consisting in the fact that the above-mentioned members of the military intelligence service (KhAD-e-Nezami), in any event this person or these persons, (all) working then and there for and/or subordinate to the defendant (and his co-perpetrator(s)), in violation of

international customary law and/or

the provisions of 'common' article 3 of the Geneva Conventions of 12 August 1949,

as a member/members of the military intelligence service (the KhAD-e-Nezami) of Afghanistan, or acting on behalf of the public authorities, belonging to one of the warring factions in a non-international armed conflict within the territory of Afghanistan,

did on several occasions commit acts of physical violence and/or mutilation and/or cruel and/or inhuman treatment and/or torture, on one or more persons who was/were not then taking any direct part in the hostilities (namely one or more civilians and/or those placed hors de combat by detention or some other cause),

namely persons including [victim 1] and/or [victim 3] and/or [victim 2] (the son of [name of the father of victim 2]), and/or one or more other persons,

such acts of physical violence and/or mutilation and/or cruel (inhuman) treatment and/or torture consisting in, among other things, the fact that the said member or members, or the aforementioned persons, together and in association with one or other persons, or alone,

on one or more occasions in or around the period from 1 December 1985 to 1 March 1986, in or near the premises of the KhAD-e-Nezami in Kabul, or in any event in Afghanistan,

causing the above-mentioned [victim 1] pain and/or serious bodily injury, and/or

on one or more occasions in or around the period from 1 December 1985 to 1 June 1986 in or near the premises of the KhAD-e-Nezami in Kabul, or in any event in Afghanistan,

causing the above-mentioned [victim 2] pain and/or serious bodily injury, and/or

on one or more occasions in or around the period from 1 December 1985 to 1 May 1986, in or near the premises of the KhAD-e-Nezami in Kabul, or in any event in Afghanistan,

causing the above-mentioned [victim 3] pain and/or serious bodily injury

in respect of which above-mentioned acts of physical violence, at least one of which resulted in serious bodily injury, or in any event bodily injury, he, the defendant [name of defendant], on one or more occasions in or around the period from 1 October 1981 to 1 January 1987 in Afghanistan,

intentionally permitted persons subordinate to him, the defendant, to commit these offences on several occasions, or in any event on one occasion (on each occasion),

to wit, that he, the defendant (and his co-perpetrator(s)), took no or insufficient measures to prevent these acts of physical violence and/or serious bodily injury, or in any case bodily injury, and to punish the subordinates responsible for them.

(section 9 of the Wartime Offences Act)

3. Legal proceedings

The defendant was acquitted on counts 1 and 2 of the indictment at first instance.

The prosecutor appealed this judgment within the appropriate period of time.

4. Assessment of the contested judgment

The Court of Appeal largely concurs with the District Court's rulings, albeit on partly different grounds. In this connection the Court of Appeal will set aside the judgment that is the object of this appeal.

5. Discussion of the submissions in defence

In considering the submissions in defence, the Court of Appeal wishes to emphasise that it will only address those that were expressly substantiated in the appeal hearing.

The Court of Appeal will disregard submissions in defence that were formulated merely in general terms, without any specific repetition of the submissions at first instance.

5.1 Jurisdiction

1. The defence submitted principally that the Court of Appeal was not the competent court of jurisdiction to take cognizance of the facts described in count 2, since - in brief - the criminal liability of a superior, the doctrine of 'command responsibility', as it is called, was not part of international customary law in respect of non-international armed conflicts in the period covered by the charge, and therefore [any breach of this responsibility] did not constitute a criminal offence under either international or domestic law.

2. Having regard to the Supreme Court's considerations regarding the question of jurisdiction in its judgments of 8 July 2008 in the cases of [head of the KhAD-e-Nezami]1 and [head of the investigation and interrogation division of the KhAD-e-Nezami],2 the Court of Appeal holds as follows in respect of this question.

3. The defendant is accused of acts that he allegedly committed in Kabul in Afghanistan between 1 January 1981 and 1 January 1987 as deputy head / director of the military intelligence service KhAD-e-Nezami. In brief, the charge is that he intentionally permitted subordinates to commit acts of torture, cruel (inhuman) treatment and other forms of (aggravated) violence against three named Afghan victims, who had been taken captive by the KhAD-e-Nezami and were hence in its power. Proceedings were instituted against the defendant after he had sought asylum in the Netherlands.

4. The prosecution of the defendant is based on the provisions of sections 8 and 9 of the Wartime Offences Act (hereinafter referred to as: WOS).

At the time of the offences with which the defendant has been charged, section 8 of the WOS read as follows:

At the time of the offences with which the defendant has been charged, section 9 (old) of the WOS read as follows:

'Any person who wilfully permits an offence as described in the previous section to be committed by a subordinate shall be liable to the same sentence as that carried by such offences.'

5. It must be stated first and foremost that article 94 of the Constitution provides that statutory regulations in force within the Kingdom are not applicable if such application is in conflict with provisions of treaties that are binding on all persons or provisions of resolutions adopted by international institutions.

This provision lays down the principle that the courts are required to examine statutory regulations in the light of treaties and resolutions adopted by international institutions, but that they must not examine them in the light of unwritten international law.

6. It is in the interests of all peoples that those who commit war crimes, whoever they may be and wherever these crimes may have been committed, should be investigated and brought to justice. The four Geneva Conventions of 12 August 1949, in any event, are based on this principle.

7. Since the entry into force of these conventions, acting in breach of common article 3 of these conventions constitutes a criminal offence under section 8 of the WOS, and the Dutch courts have universal jurisdiction in such cases on the basis of section 3 of the WOS, as follows from the Supreme Court's judgment of 11 November 1997 (Knesevic II).3 It also follows from this judgment (see consideration 6.3) that the same applies explicitly to the criminal offence defined in section 9 of the WOS.

8. The defence's position appears to be based on the assumption that this form of individual criminal liability must be based on a mandate under international law. This assumption is incorrect. The criminalisation of [breaches of] 'command responsibility' follows directly from the provisions of section 9 in conjunction with section 8 of the WOS, as discussed here, and the legislature has provided unconditionally and literally, in section 3, opening words and 1° of the WOS, for jurisdiction over the war crimes specified in sections 8 and 9 of that Act.

9. There is no dispute regarding the nature of the conflict in this case, which was primarily a non-international armed conflict. The Court of Appeal further holds, on the basis of the defendant's own statement at trial, that he had knowledge of this armed conflict.

10. In view of this, section 1 of the WOS must be interpreted as meaning that the relevant provisions of this Act, including section 3, opening words and 1º, are fully applicable to the crimes defined in sections 8 and 9, without the restrictions specified in subsections 1, 2 and 3 of section 1. This means that the Dutch courts have jurisdiction over the offences described in count 2 of the indictment. Whether these offences can be proven, and whether these offences, if proven, are punishable by law, are questions of an entirely different order, to be discussed in due course, and do not affect the court's jurisdiction. This defence is therefore unsuccessful.

5.2. Other submissions regarding the admissibility of the prosecutor's case

11. The defence submits that the case brought by the prosecution service should be declared inadmissible, or that evidence should be excluded from consideration. In support of this submission, the defence argues as follows (in brief).

5.2.1 The principle of nulla poena sine lege

12. The defence holds that the prosecution's case should be declared inadmissible in relation to a prosecution on count 2 of the indictment, since any such prosecution, in any event as proposed by the public prosecution service, is incompatible with the principle of nulla poena sine lege.

13. It is the Court of Appeals understanding that the essence of the defence's case is that for the defendant, a member of the Afghan armed forces, it was not foreseeable within the meaning of article 7 of the ECHR and article 15 of the ICCPR, that he might be prosecuted on the basis of his alleged 'command responsibility' for offences committed in the period to which the charges relate, since this form of criminal liability did not exist in international customary law at the time. The defence further takes the position that the elaboration of this legal doctrine, as developed - partly on the basis of their Statutes - in the case law of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR, respectively), was also not foreseeable for the defendant, as a result of which the application of this case law, in any event the interpretation of this legal doctrine in case law, is incompatible with article 7 of the ECHR and article 15 of the ICCPR.

14. The prosecution service held that it was in fact perfectly foreseeable for the defendant, on the basis of article 7 of the ECHR and article 15 of the ICCPR, that the charges against him in count 2 of the indictment were not only criminal offences under national law, but actually constituted violations of international humanitarian law, for which he could be held accountable under the criminal law, even in another country. In the view of the prosecution service, the criminal offence described in count 2 is defined by section 8 in conjunction with section 9 of the WOS, while common article 3 of the Geneva Conventions serves as the touchstone.

15. The Court of Appeal takes the following view. The principle of nullum crimen, nulla poena sine lege, which basically means no crime without law, no punishment without law, can be regarded as one of the most fundamental principles of any democracy governed by the rule of law. Its aim, in brief, is to protect members of the public from the arbitrary actions of government, with the law serving as a safeguard for members of the public; but at the same time it also serves as a basis for the government's competence to administer punishment. In the Netherlands, the principle of nullum crimen, nulla poena sine lege - as far as the substantive criminal law is concerned - is expressed by article 1 of the Criminal Code (and the comparable article 16 of the Constitution).

16. Article 7 of the ECHR provides in this connection that no one shall be found guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed (nullum crimen sine lege: no crime without a law). It further provides that no heavier penalty shall be imposed than the one applicable when the criminal offence was committed. This latter provision, it should be noted, is not disputed in the present case.

Article 15, para. 1 of the ICCPR has an identical provision. Afghanistan has been party to the ICCPR since 24 January 1983.

Article 7, para 1 of the ECHR states, inasmuch as relevant to this case:

'No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed ...'.

17. The European Court of Human Rights (ECtHR) first stated explicitly that article 7, para. 1 of the ECHR embraces the principle of nulla crimen sine lege in addition to the principle of non-retroactive applicability in connection with the case of Kokkinakis v. Greece:4

'The Court points out that Article 7 para. 1 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) ...'.5

The fact that an act can only be punished, in accordance with the principle of nullum crimen, nulla poena sine lege, on the basis of prior statutory provisions defining the act concerned as a criminal offence implies that criminal laws cannot be applied retroactively to acts that were not defined as criminal offences when they were committed (see also article 16 of the Constitution). The principle of nullum crimen, nulla poena sine lege further implies that it must be possible for everyone to know what acts are criminal offences and the penalties that may be imposed as a result. This means that the law must be accessible and foreseeable. The foreseeability of the law should be examined on the basis of specific offences, in relation to which the scope and obligation for those concerned to apprise themselves effectively of the rules applicable under the criminal law should also be taken into consideration. Foreseeability cannot be seen in isolation from the status and position of those whose actions fall within the scope of the criminal provision.6 In this context, the defendant's position in the Afghan military apparatus, and the degree to which he may be assumed to have been well-informed about the universal rights of individual human beings, may help to determine foreseeability.7

The ECtHR has also adopted the position that it is admissible for criminal provisions to be clarified in the case law, and for changing views to be taken into consideration when interpreting the definition of an offence; however, it is a minimum requirement that the development of this case law must be consistent with the essence of the offence and must in all reasonableness have been foreseeable for the defendant.8 The Court of Appeal must establish, taking the aforementioned considerations into account, whether this criterion of foreseeability was fulfilled at the time when the alleged criminal offence was committed. Weighing this decision will involve considering the question of whether the acts of which the defendant stands accused, in short, that in his capacity as a superior he permitted persons subordinate to him to commit acts of torture and/or cruel (inhuman) treatment and other forms of aggravated violence, were criminal offences under national law and under international law.

18. The Court of Appeal would note first and foremost that the concept of 'law' within the meaning of article 7, para. 1 of the ECHR must be interpreted in the same way as in the other articles of international law in which this term is used. It is accepted that punishment can be imposed not only in accordance with a written statutory provision, but also on the basis of unwritten law, more specifically customary law and case law.9 Many criminal offences under international law, such as the charges of torture and other violations of international humanitarian law in the present case, have been incorporated into a series of international instruments, such as those that are relevant here, namely the Geneva Conventions of 12 August 1949, which were ratified by Afghanistan on 26 September 1956, and the Additional Protocols to those Geneva Conventions of 8 June 1977.

19. The Government of the Netherlands, which is also a State Party to the Geneva Conventions of 1949, has the obligation enshrined in common article 3 of those conventions to take measures to apply minimum rules governing the humane treatment of 'persons taking no active part in the hostilities' in the event of a non-international armed conflict, followed by the obligation laid down in section 8 of the WOS (and in the case of a superior in section 9 of the WOS) to define the said violation of the laws and customs of war as criminal offences. As held above, torture and other violations of international humanitarian law are defined in common article 3 as violations of internationally respected humanitarian standards of conduct. In this context, section 8 in conjunction with section 9 of the WOS define the relevant criminal offences, while common article 3 is the touchstone. This establishes that the crimes described in the indictment were criminal offences under Dutch law in the period concerned. The prosecution service did not present any evidence that the defendant was familiar with the WOS, and more specifically, with the criminal liability of a superior as defined in section 9 of the WOS.

20. The foreseeability of the law, as asserted above, is examined in relation to specific offences. Once the underlying standard of conduct (and the breach of it) is established, it is important to establish whether the defendant, a former member of the Afghan armed forces, should have taken account of the fact that on the basis of his designated position of superior officer, he could be prosecuted in the Netherlands for acts of torture, inhuman treatment and other violations of international humanitarian law, committed by his subordinates in the period to which the charges relate. In other words, whether the defendant was entitled to assume that he would not be prosecuted as a superior officer in the Netherlands since this form of indirect criminal liability was not defined as a criminal offence under international customary law.

21. Before addressing this issue, the Court of Appeal wishes to begin by noting that the defence does not contest the fact that torture and other serious violations of international humanitarian law as described in the indictment were defined as criminal offences in the period to which the charges relate in Afghanistan, as elsewhere. In this connection, the court would refer for the record to the Constitution of Afghanistan of 24 February 1976, which endorses the principles of the Charter of the United Nations, the Universal Declaration of Human Rights, and hence the recognition that every human being has the right to life, liberty and security of person.

The relevant passage of article 31 of that Constitution states as follows:

'... Torturing, and imposing punishment incompatible with human dignity is not permissible.'

In addition, a ban on torture can be inferred from Afghanistan's ratification of the Geneva Conventions, more specifically articles 146 and 147 of the Fourth Geneva Convention, from which an obligation to define torture as a criminal offence can be inferred, as well from its ratification of the ICCPR.

22. The Court of Appeal further concurs with the view of the prosecution service and the defence that the findings relating to Afghan legislation, as added to the case file by the prosecution service for the substantive hearing of the case on appeal, shed little light on the legislation in force in Afghanistan in the period to which the charges relate, concerning the criminal responsibility of a superior officer for the actions of his subordinates in the sense at issue here. It is therefore impossible to establish whether Afghanistan too possessed statutory regulations in the period to which the charges relate that could be cited as a basis for the criminal liability of a superior officer in the sense described above.

23. The Court of Appeal must therefore determine whether this form of individual criminal liability, known in international law as the doctrine of command responsibility, was defined as a criminal offence, in the period to which the charges relate, under international customary law, both in international and non-international armed conflicts, as the prosecution service has claimed.

To establish this, the Court of Appeal will have to evaluate the doctrine of command responsibility and its application under international law, having regard to the above. This case primarily relates to relationships within a military command structure. The Court of Appeal would note, for the record, that civilian or other non-military leaders may also be defined as 'superiors'. In these cases, the term 'superior responsibility' is sometimes used.

24. The general obligation for a superior to take measures to prevent his subordinates from committing criminal offences and to punish those who do so, which follows from the doctrine of command responsibility, derives from the obligations included in responsible command, as a fundamental principle of humanitarian law.10 According to this latter principle, a superior officer has an obligation to ensure that troops under his command are well organised and disciplined, and that they are capable of complying with humanitarian standards.11 The principle of responsible command can be traced back to the earliest codifications of the laws of war: it was incorporated, for instance, into the Hague Convention of 29 July 1899 respecting the laws and customs of war on land, with the accompanying Regulations.

This principle was later repeated in article 1 of the Regulations as an annex to the Fourth Hague Convention respecting the laws and customs of war on land dating from 18 October 1907, the relevant passage of which reads as follows:

25. After the Second World War, the doctrine of command responsibility, which was derived from the principle of responsible command as a form of indirect perpetration, was developed further as a universal legal principle within international law. In this connection, the Court of Appeal would refer first and foremost to the important (though not entirely uncontroversial) judgment in the case against General Tomoyuki Yamashita by a U.S. Military Commission in Manila.12 This charge laid against this former Japanese commanding officer in the Philippines, inasmuch as relevant here, was that:

'while a commander of armed forces of Japan at war with the United States of America and its allies, [he] unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he ... thereby violated the laws of war.'

The essence of the charge was that he had failed to fulfil his obligations as a commanding officer and had permitted his troops to commit war crimes. In ruling that Yamashita bore individual criminal liability, the United States Supreme Court relied on the concept of responsible command, as this may be found, for example, in the above-mentioned Fourth Hague Convention of 1907 and article 43 of the Regulations attached as an annex to that Convention. The US Supreme Court ruled that the purpose of the law of war was:

'to protect civilian populations and prisoners of war from brutality and [this purpose] would be defeated if the commander of an invading army could with immunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that this violation is to be avoided through the control of war by commanders who to some extent are responsible for their subordinates.'13

26. From other judgments too, including those pronounced by the Nuremberg and Tokyo Tribunals after the Second World War, including, more specifically, the 'Hostage', 'High Command' and 'Toyoda' cases,14 it appears that military commanders may in some circumstances be held responsible for serious criminal offences committed by their subordinates, even in cases in which they have only failed to prevent these offences or have allowed them to persist. Since the underlying conflicts at issue in the above-mentioned cases were of an international nature, the doctrine of command responsibility thus naturally developed, in the case law, in the realm of international armed conflicts of this kind. While the legal principles that follow from the above-mentioned judgments cannot automatically be applied in the context of non-international armed conflicts, as is concerned in the present case, these judgments are significant, in the view of the Court of Appeal, in the sense that they reflect the development of the doctrine of command responsibility, and therefore help to determine the answer to the question of foreseeability.

27. In 1950, the Affirmation of the Principles of International Law recognised by the Charter of Nuremberg, adopted by the General Assembly of the United Nations in 1946, affirmed the principles of international law as recognised in the Nuremberg Charter and the judgments handed down by the Nuremberg Tribunal. Taking into account the rulings of this Tribunal that have been quoted above, this can be seen as a recognition of the doctrine of command responsibility as a form of individual criminal liability as one of the principles of international law.15

28. The Geneva Conventions of 12 August 1949, which, with the exception of common article 3, relate to armed conflicts of an international character, do not contain any specific provision relating to command responsibility. The Conventions do contain a number of provisions from which the obligation to define it as a criminal offence can be inferred. In this connection the Court of Appeal would refer to article 146 of the Fourth Geneva Convention of 1949 relative to the protection of civilians in wartime, the relevant passage of which states as follows:

'1. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

2. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

'... Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, ... wilfully causing great suffering or serious injury to [the] body ...'.

29. In count 2 of the indictment, the defendant in the present case is accused (in brief) of permitting, as a superior, torture and/or cruel (inhuman) treatment and other, aggravated forms of violence. The Court of Appeal would note that these underlying criminal offences must be classified as grave breaches of the substantive norms of international humanitarian law in international and non-international armed conflict, although in the latter case they do not technically qualify as 'grave breaches' under the Convention.

In relation to the obligations of the States Parties to uphold the substantive norms of international humanitarian law, the Conventions do draw certain distinctions. From article 146, paras. 1 and 2, of the Fourth Geneva Convention, as quoted above, may be inferred an obligation to criminalise 'grave breaches', as well as to investigate them and prosecute the perpetrators, regardless of nationality. In relation to other breaches, such as in the case of common article 3 of the Geneva Conventions, the 'sole' obligation is to prevent them occurring, without the manner in which this must be done being prescribed. In itself, the text of the Convention allows for the possibility that in this latter case too, the criminal law should be deployed for the purposes of law enforcement (cf. section 8 in conjunction with section 9 of the WOS).

30. In 1977, two Additional Protocols to the Geneva Conventions were adopted. The First Additional Protocol of 8 June 1977 concerns the protection of victims of international armed conflicts under the Geneva Conventions (hereafter: First Additional Protocol). The Second Additional Protocol of 8 June 1977 deals with the protection of victims of non-international conflicts (hereafter: Second Additional Protocol). The two Additional Protocols fill in a number of gaps in the Geneva Conventions of 1949.

31. The Second Additional Protocol does not contain any specific provision concerning the criminal liability of military commanders. Article 1 refers explicitly to the aforementioned principle of responsible command which, according to the commentary, implies an organisation capable of planning and carrying out sustained and concerted military operations and of imposing discipline in the name of a de facto authority or the government.16

32. On the other hand, article 86 in conjunction with article 87 of the First Additional Protocol codifies the liability of commanding officers for the actions of their subordinates or their failure to prevent or suppress such actions. It may be added that criminal liability had already been established in the past for individuals and representatives of the state who had been indirectly or directly involved in war crimes or crimes against humanity and who had therefore failed to fulfil their obligation to prevent these crimes.

In this connection the Court of Appeal would refer to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968, which Afghanistan ratified in 1983, and which according to the text seeks to secure the prosecution of private individuals or representatives of a State Party who have been indirectly or directly involved in committing the aforementioned crimes.

33. Article 86, para. 2 of the First Additional Protocol confirms the criminal liability of superiors who fail in their duty to act, the basis of which is formed by the obligation that article 87 of the same Protocol imposes on commanding officers to prevent violations of the Geneva Conventions and their Additional Protocols.

The relevant passage of article 86, para. 2 states as follows:

'2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.'

Article 87 states as follows:

'1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.

2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.'

34. It can be inferred from the aforementioned article 86, para. 2 that three conditions must be fulfilled if a military commander is to possess 'penal or disciplinary responsibility' for grave breaches of the Conventions or the First Additional Protocol committed by his subordinates. These are as follows: for breaches of international humanitarian law, including the use of forms of violence referred to in those Conventions:

These same elements later recur in the aforementioned statutes of the ad hoc tribunals. The existence of a superior/subordinate relationship of authority and the required knowledge (the mens rea) in the sense of 'intentionally permitting' the acts concerned are elements that can also be found in section 9 in conjunction with section 8 of the WOS. The existence of a relationship of authority follows directly from the superior's obligation to take action as laid down in article 86, para. 1. It should be added that in assessing this relationship, the superior's effective control over his subordinate's actions, in the direct and indirect line (discussed at greater length below), is a necessary condition for establishing his criminal liability.17 Article 86 is applicable to all breaches, including those defined as 'grave breaches'.18 In the case of grave breaches, the principle of universal jurisdiction applies (aut dedere aut judicare); this means that there is an obligation to extradite or prosecute.19

35. Notwithstanding the fact that the case at hand relates to a non-international armed conflict and the Second Additional Protocol that relates to such conflicts does not contain any separate guidelines for 'command responsibility', it cannot be inferred a contrario from the lack of any such specific provision in this Protocol and the fact that national governments are left to codify the principle of command responsibility themselves in the event of an internal conflict, should it become necessary, that the application of this doctrine is ruled out in the context of internal armed conflicts.20

In this connection the Court of Appeal would refer to the relevant passages in the commentary on the Additional Protocols:

'If a case is "not covered by the law in force", whether this is because of a gap in the law or because the parties do not consider themselves to be bound by common article 3, or are not bound by Protocol II, this does not mean that anything is permitted. "The human person remains under the protection of the principles of humanity and the dictates of the public conscience": this clarification prevents an a contrario interpretation.'21

In addition:

'[e]ven though customary practices are traditionally only recognised as playing a role in international relations, the existence of customary norms in internal armed conflicts should not be totally denied.'22

36. The fact that the doctrine of 'command responsibility' within the meaning of article 86 in conjunction with article 87 of the First Additional Protocol cannot be applied explicitly to non-international armed conflicts does not mean, in the court's view, that commanding officers were under no obligation, in an armed conflict of this kind, to supervise their subordinates, monitor their actions and intervene if necessary. After all, this is a fundamental principle of military law. Furthermore, article 1 of the Second Additional Protocol refers explicitly to the principle of 'responsible command': the armed forces should be under a responsible command and must be capable of implementing the provisions of this Protocol - which includes the ban on torture and other forms of inhuman treatment. In the view of the Court of Appeal, it can be inferred from the fact that this Protocol too has by now been ratified by a large number of countries worldwide that the principles of international humanitarian law enshrined in it, such as follow, for instance, from established customs and principles of humanity, are accepted as such by the civilised nations. It should be taken into account here that this Protocol has developed a system of minimum norms that have been accepted by the international community, and that in 'in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.'23 Like common article 3, the Second Additional Protocol leaves intact the right of the authorities to prosecute and sentence private individuals and members of armed forces who have committed breaches (whether or not 'grave breaches') of international humanitarian law related to the conflict.24

37. The Court of Appeal concludes that the doctrine of 'command responsibility' as a form of indirect perpetration derived from that of 'responsible command' has developed, most notably since the Second World War, as a universal principle of law within international humanitarian law in the case of international armed conflicts.

In this context, articles 86 and 87 of the First Additional Protocol explicitly establish the individual criminal liability of the superior in the case of grave breaches of the Geneva Conventions or of the Protocol, arising from the failure to take action, while the superior is under an obligation to take action but does not do so (article 86, para. 1).

The norms that follow from the Second Additional Protocol - regarding this point too - are less detailed. Nonetheless, in the provisional view of the Court of Appeal, it can be inferred from the fact that the Second Additional Protocol too imposes on the superior the obligation of 'responsible command' that the basis for taking steps to prevent grave breaches of the aforementioned Geneva Conventions and the Additional Protocols existed under international law even at that early stage. The fact that Afghanistan has not ratified these Additional Protocols, and it cannot be established that the criminal law doctrine of 'command responsibility' as a form of indirect perpetration derived from that of 'responsible command', was enshrined in criminal law in Afghanistan, does not detract from this.

38. For the further resolution of the question of whether the doctrine of command responsibility was accepted as a universal principle of international criminal law and was part of international customary law, and if so from what point in time, the Court of Appeal looked more specifically at the decisions and judgments of domestic courts of law and the various ad hoc tribunals. The individual criminal liability of the superior can be found in article 7 § 3 of the Statute of the ICTY Statute, article 6 § 3 of the Statute of the ICTR and (mutatis mutandis) in article 28 of the Statute of the ICC. In the negotiations on the drafting of the ICC Statute, the notion that command responsibility should extend to non-international armed conflicts was undisputed. The underlying objective of this principle is 'to ensure compliance with the laws and customs of war and international humanitarian law generally'.25

The relevant passage in article 7 § 3 of the Statute of the ICTY reads as follows:

'The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility, if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.'

39. According to the report of the Secretary-General in the drafting of the ICTY Statute, the principle of nullum crimen sine lege requires that the Tribunal

'should apply rules of international humanitarian law which are beyond any doubt part of customary law ...'.26

The Statute was eventually adopted unanimously by the UN Security Council on 25 May 1993. From this it can be inferred that this was also applied to the doctrine of 'command responsibility' as contained in article 7, para. 3. From the case law of the ad hoc tribunals, it appears that the principle of 'command responsibility' is now a recognised form of individual criminal liability under international customary law,27 and relates to internal as well as international armed conflicts.28 The most important elements that were established in defining this legal principle arise from the fundamental principles of international humanitarian law, which seeks to protect certain groups of individuals and forms part of international customary law:

'The principle that military and other superiors may be held criminally responsible for the acts of their subordinates is well-established in conventional and customary law'.29

40. Summarising, on the basis of the above, and weighing all the considerations together, the Court of Appeal reaches the following conclusion. In the case at hand, the defendant is accused - in brief - of permitting, as a superior, his subordinates to commit torture, cruel, inhuman treatment, and other forms of aggravated violence. These underlying criminal offences can be described as grave breaches of the substantive norms of international humanitarian law in both international and non-international armed conflicts. While it is true that common article 3 of the Geneva Conventions does not prescribe the enforcement of the criminal law in the event of breaches of those norms, in the Court of Appeal's opinion it does implicitly impose on States Parties the obligation to impress on everyone, hence also military commanders or superiors, that they should adhere to these norms.

Notwithstanding the fact that the present case concerns a non-international armed conflict, in the view of the Court of Appeal, the rule of nullum crimen sine lege is fulfilled, in principle, if the underlying criminal offence was actually defined as such by law, regardless of whether or not the specific charges against the defendant were formulated in this connection in specific statutory provisions.30 For it cannot be that in the case of grave breaches of international humanitarian law such as torture and cruel, inhuman treatment and other forms of aggravated violence as described in the charges, arising from the superior's failure to act - while an obligation exists on the basis of those internationally accepted norms to take action - the defendant may safely assume that in such a case he will go unpunished. It can further be concluded from the case law that has developed since the Second World War that the doctrine of command responsibility, which was derived from the principle of responsible command as a form of indirect perpetration, has developed into a universal legal principle within international law against the backdrop of changing conditions, in order to meet the demands of the day. Another consequence of this is that the doctrine of 'command responsibility' has been transformed from at times opposing precedents into a consistent legal doctrine. It may be concluded that in any event since the adoption of the ICTY Statute in 1993, the doctrine of command responsibility has been recognised as a form of individual criminal liability arising from international customary law, both in international and in non-international armed conflicts.

Although it is not possible in all cases to pinpoint the moment at which a particular norm has become part of international customary law, the court does not see any grounds for the supposition (or proposition) that this form of liability does not apply to offences committed several years earlier, as in the present case. On the basis of its analysis of written statutory provisions, more specifically the various international instruments mentioned in the judgment, but also of unwritten law, more specifically customary law and case law, viewed in relation to one another and as parts of the whole, the Court of Appeal reaches the conclusion that the aforementioned liability of the superior already applied in the period to which the charges relate, more in particular in the period from 1 December 1985 to 1 March 1986, in relation to breaches of common article 3 of the Geneva Conventions, also in cases of non-international armed conflicts.

41. According to the documents in the case file and the evidence presented in the appeal proceedings, the defendant comes from an intellectual Afghan family and made a career as a professional soldier, including a period at the KhAD-e-Nezami in Kabul, where he was serving as the second deputy of the head of that organisation in the period to which the charges relate. He also held other senior positions within the KhAD-e-Nezami in the period to which the charges relate, in connection with which he frequently travelled abroad for further training and consultations.

Since the defendant does not dispute the fact that torture and other acts mentioned in the charges were also prohibited in Afghanistan and since these acts can be defined as grave breaches of international humanitarian law, both in international and in non-international armed conflicts, he was not entitled or free to assume that he would be [sic] prosecuted as a superior, as now on the basis of section 9 in conjunction with section 8 of the WOS, for these crimes committed by his subordinate(s).

This being the case, the court reaches the conclusion, weighing all the evidence, that it should have been foreseeable for the defendant that he could be prosecuted under the criminal law - even in another country - for the offences in count 2. This line of defence is therefore unsuccessful.

5.2.2 Cumulative charges

42. At first instance, the defence argued that the case brought by the public prosecution service should be declared inadmissible in respect of the prosecution for the cumulative charge 2, where - as the court understands - the victims named in that charge, [victim 1] and [victim 2], were concerned. In the appeal proceedings, the defence took a different line; here it argued that the case brought by the public prosecution service should be declared inadmissible in respect of prosecution on both counts 1 and 2 of the indictment. In support of this position, it argued, in brief, that although a cumulative charge as such was a possibility, viewed in the light of the case law, it cannot be so that this effectively leads, as is now the case, to a double prosecution. The defence takes the view that the prosecution service should have made a choice. It should have opted either for the co-perpetrator variant within the meaning of section 8 of the WOS, or for the construction of the doctrine of 'command responsibility' within the meaning of section 9 of the WOS.

43. The Court of Appeal agrees with the District Court that each of the offences of which the defendant is accused is a separate charge. While in count 1, the accusation is about perpetrating (or co-perpetrating) certain aggravated acts of violence (actual commission of certain offences), count 2 is about possible criminal liability for these offences in the framework of what the defence has called 'command responsibility'.

44. In each of the two charges made against the defendant, the allegations relate to acts committed in relation to named persons and 'others'. It is entirely plausible that in charges of this kind, evidence may be found in relation to one or more of the named victims for the acts described in count 1, while in relation to one or more other victims, evidence may be found for the acts described in count 2.

For this reason alone, the Court of Appeal concurs with the prosecution service that no grounds exist for declaring the prosecution's case inadmissible, but holds that the question raised by the defence does not become relevant until the consideration of the evidence, the possible judicial finding of fact, and sentencing. The claim that the prosecution's case is inadmissible must therefore be rejected.

5.2.3 Amnesty

45. The defence has argued that the case of the prosecution service should be declared inadmissible for purposes of prosecution, since the Afghan Parliament passed an amnesty law in 2007, which has since entered into effect, and which is - in brief - also applicable to the defendant.

46. At the appeal court hearing of 22 April 2009, it emerged that the defence no longer disputed the contention of the prosecution service that the said law had not yet been signed by the President of Afghanistan on 6 April 2009 and that it had therefore not yet entered into force. At the time at which the investigation of this case was closed, it must be assumed, in the view of the Court of Appeal - in the absence of evidence to the contrary - that the said amnesty law had not yet entered into effect. For that reason alone, the claim that the prosecution's case is inadmissible - which is based on this legislation being in force - must be rejected.

47. The Court of Appeal sees no reason, at this time, to devote considerations by way of obiter dicta to the question of whether, if this legislation were indeed found to have entered into effect, it would be applicable to the defendant, and if so, whether the public prosecution service in the Netherlands would hence no longer be entitled to prosecute this defendant residing in the Netherlands for acts that were defined as criminal offences in the Dutch legislation that applied in the period relating to the charges brought by the public prosecution service.

6. Considerations relating to the evidence

6.1 General remarks

48. The case file contains a large number of witness statements and other items of evidence. Regarding the assessment of this evidence, the Court wishes to start by noting that the present criminal case is characterised by a number of unusual facts and circumstances that merit further consideration.

49. In the first place, the charges relate to facts and circumstances that took place a long time ago in a non-Western country that was embroiled in a fierce internal conflict, all of which greatly complicates the investigation, for instance when it comes to tracking down witnesses who may still be available, the memories of these witnesses, and the availability of other supplementary evidence.

What is more, the events in the indictment, if proven, took place in a country that displayed - and still displays - little resemblance to Dutch society in terms of political, cultural and socioeconomic factors, and one that was and still is in the throes of internal divisions relating to profound political, religious and ethnic disputes and (associated, in this case) armed conflicts. Added to this is the fact, which may be assumed to be general knowledge, that the structure of Afghan society, with its great diversity of ethnic groups and interests that do not always coincide with them, is enormously complex. These and other factors in particular, as has become clear, impeded the investigation in these criminal proceedings to a greater or lesser extent. One of these factors is the lack of security in Afghanistan that persists to this day, which in some cases made it difficult to question witnesses there, in the presence of legal counsel, and to proceed with the investigation.

50. In the light of the above, the Court has paid particular attention to the individual circumstances relating to the various witnesses, including the reliability of their statements. In this connection, the Court of Appeal would begin by noting that partly as a result of the passage of time, the limits of memory are obvious. In addition, judging from general experience, it is not implausible that the memories of the various witnesses may have been adversely influenced as a result of the events they underwent, which must have been highly traumatic for some. More generally, the same applies to the witnesses' powers of observation.

51. The Court of Appeal also paid particular attention to the assessment of the credibility, reliability and plausibility of the witness statements in this case. In several instances it found discrepancies between these witness statements (or elements of statements) and statements made at a later stage, for instance to the examining magistrate or in the course of the trial. For the witnesses, over twenty years have elapsed since the events described in the indictment, and it is therefore not improbable that the passage of time has affected the accuracy and reliability of these individuals' memories. Furthermore, the Court of Appeal recognises that it is inherent to the nature of a criminal investigation that a witness may be faced with different questions when appearing before an examining magistrate than those put to him at an earlier stage in proceedings, and that a witness may possibly recall additional details later on when specifically questioned about them, even if such details had not come up at an earlier stage. This only heightens the importance of weighing the evidence critically and meticulously.

52. In view of the aforementioned passage of time, in the case of minor discrepancies in witness statements, the Court of Appeal has not necessarily concluded that these statements lack credibility. On the other hand, where a statement displays repeated inconsistencies or gaps, the Court of Appeal has in some cases decided to ignore such statements, unless the relevant parts of the statement are corroborated by other evidence.

53. It has also become clear that the identities of the witnesses have not been verified in all cases. Some witnesses were examined only by telephone, and in such cases the person's identity was not checked; in any event, no such checks have been documented. If witnesses who did in appear in person were unable to produce identity papers, the reporting officers accepted the names given by the persons concerned. Furthermore, it has become apparent that not all the statements in the case file were handed to the witnesses concerned and read back to them (with the aid of an interpreter) afterwards, so that they could sign them.

54. The case file also contains statements made by witnesses who were examined in the criminal investigation against [head of the KhAD-e-Nezami] and [head of the investigation and interrogation division of the KhAD-e-Nezami] (case RL 5051), which were later added to the criminal file against the defendant. Not all these witnesses were examined again, partly because, as became apparent, not all of them could be traced and some did not appear for questioning despite having undertaken to do so.

55. In relation to the manner in which the witness statements were obtained, the Court of Appeal has also studied the way in which witnesses were examined and most notably the way in which questions were formulated, the kind of questions that were asked, the substance of these questions, and - where possible - the attitude of the officer who examined them. In this context it is further important to note whether there is any evidence of miscommunication between the examining officers, interpreters and witnesses. Finally, the Court of Appeal took account of the fact that several witnesses stated that they had been subject to threats, intimidation or pressure from third parties.

56. The documents in the case file also include visual and film material originating from the investigation conducted by the National Criminal Investigation Department into the complex of buildings in which the former headquarters of the KhAD-e-Nezami in Kabul was located and where the events described in the indictment are said to have taken place. The private secretary of the owner/occupant of this complex showed Dutch investigating officers around the surrounding grounds and the ground floor of the building, using a plan drawn by [witness 1]. This was where the defendant's offices were located for part of the 1980s, and where the KhAD-e-Nezami's own investigation and interrogation service (Modiriat) was established, headed by [head of the investigation and interrogation division of the KhAD-e-Nezami]. The private secretary had no personal knowledge of the way the building had been used in the relevant period, since he had not been in Afghanistan at the time. This does not necessarily mean, however, that this evidence must be dismissed as unreliable. Where necessary the Court of Appeal will use this visual material, which was shown during the appeal proceedings, as if it were the Court of Appeals own observations.

57. In addition, it has been established that written Afghan sources are only accessible and available to a limited degree. The Court of Appeal was not able to establish conclusively the status and authenticity of all available written documents. In this connection, the Court of Appeal would note that the available written documents have only been used as evidence where they are corroborated by other evidence.

58. Taking all the above facts and circumstances into consideration, the Court of Appeal will apply extreme caution in its assessment of the reliability of the evidence that is available in this case.

6.2 Unlawfully obtained evidence

59. In relation to the evidence in this case, the defence took the position that it was obtained unlawfully, having regard to the unlawful way in which the witnesses were examined and the fact that the photo identifications were carried out in a manner incompatible with the existing legislation. In support of its position, the defence argued - in brief - that the witnesses [victim 1] and [victim 3] had been examined by the Dutch investigating officers in an inadmissible manner, since the defendant's name was suggested to them without them having volunteered it themselves, besides which the statements of the witnesses examined in this case were 'unclear', 'insufficiently reliable' or 'inconsistent'.

60. In relation to these points, the Court of Appeal holds as follows. While it is true that questions inviting a 'yes or no' response, to which the defence evidently alludes, undermine the reliability of a witness statement, it has not been established that these flaws in questioning can be defined as serious breaches of the principles of due process that intentionally or with flagrant disregard for the defendant's interests violated the latter's right to a fair trial. In the view of the Court of Appeal, the arguments advanced in support of this position are insufficient to warrant the conclusion drawn by the defence. Nor has any other evidence emerged to warrant this conclusion. In addition, the mere fact that statements are unclear, insufficiently reliable or inconsistent does not in itself imply that they were obtained unlawfully.

61. Regarding the defence's challenge concerning the way in which the photo identifications were carried out, the Court of Appeal would note that whatever the case may be, this is not relevant, since the photo identifications have not been used in evidence. This argument in the defence's case is therefore unsuccessful.

6.3 Alibi

62. The defence has argued that the defendant was not in Kabul in the period to which the charges relate, at least not in the period when the acts of violence were committed, since at the beginning of 1364 / March 1985 [Court of Appeal: the year 1364 runs from 21 March 1985 to 20 March 1986 according to the Gregorian calendar] he was appointed to the position of director of the KhAD-e-Nezami in Kunduz. In corroboration of this argument, the defence submitted two letters, of 19 and 22 November 2007 respectively, from the current Minister of Defence of Afghanistan.

63. The Court of Appeal rejects this defence, if only on the grounds that the defendant himself stated at the hearing at first instance, on the basis that he remembered having been transferred to Kunduz by order of Minister Farouq Yaqoubi, that this transfer to Kunduz took place when Mohammed Najibullah was President of Afghanistan. It is general knowledge that Babrak Karmal was President of Afghanistan until November 1986. He was succeeded by Mohammed Najibullah, initially as secretary-general of the party and chairman of the revolutionary council, after which Najibullah officially took over as President of Afghanistan, according to the available sources, in November 1987.

64. The above is not altered by the fact that a number of agencies approached for information by the relevant department of the Afghan Ministry of Defence, namely the bureau for intelligence and information gathering and management, the bureau for counter-intelligence, the personnel department, and the general bureau for crime registration of the Ministry of the Interior, in accordance with the official investigation of the intelligence agency and the bureau of military intelligence, referred inter alia to the year 1364 cited by the defence as the year of the defendant's transfer to Kunduz. The Court of Appeal attaches more weight to the defendant's specific recollection than to sources in Afghanistan that are unverifiable, if only because of the complexity of the flows of intelligence that have already been noted, especially since the defendant's own statement in this regard is corroborated by the statement made by his immediate superior [head of the KhAD-e-Nezami] to the examining magistrate on 7 February 2007.

6.4 Other defence argument: 'protected persons'

65. The defence has argued, in brief, that the defendant should be acquitted of the offences described in counts 1 and 2, since there is no lawful and convincing evidence that the three individuals named in the notice of summons and accusation, [victim 1], [victim 2] and [victim 3], are protected persons within the meaning of common article 3 of the Geneva Conventions. The statements made by the said individuals regarding their status are the only evidence of this status, and in the view of the defence, the unreliability of these statements means that they cannot serve as a basis for finding proven the required element of 'protected persons'.

66. In this regard, the Court of Appeal holds as follows. Violations of the laws and customs of war are defined as criminal offences in section 8 of the WOS. The substance of these laws and customs is defined (inter alia) by the Geneva Conventions, most notably in common article 3, which is relevant in the present case. As already noted, two additional protocols to the Geneva Convention were adopted in 1977.

The relevant passage of common article 3 reads as follows:

67. The relevant passage of article 4 of the aforementioned Second Additional Protocol, which expands and supplements common article 3 of the Geneva Conventions and which also seeks to protect the victims of non-international conflicts, reads as follows:

'1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person [...]. They shall in all circumstances be treated humanely, without any adverse distinction. [...].

68. The Court of Appeal would begin by noting that it is not in dispute that the present case concerns a non-international armed conflict in the period referred to in the indictment, that the defendant had knowledge of this conflict, and that there is a close relationship between this conflict and the criminal offence of which the defendant is accused (the 'nexus requirement'). In this sense, the general criteria for crimes covered by common article 3 are fulfilled. In respect of the criterion 'protected persons', the Court of Appeal would also note as follows:

69. The only condition laid down in paragraph 1 of common article 3, which is applicable to non-international armed conflicts such as is at issue in the present case, is that the persons concerned took no active part in the hostilities in the period in which the crimes described in the indictment were committed. Such persons include, as already noted, members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause.

70. The specific situation of the victims at the time when the criminal offences were committed is relevant to an assessment of the question of whether these victims should be classified as 'protected persons' within the meaning of common article 3. The Court of Appeal would note that common article 3 of the Geneva Conventions has a wide-ranging humanitarian objective. Although common article 3 (like the Second Additional Protocol) seeks in the first place to protect civilians, given the broad scope of this provision during hostilities, the protected persons covered by this article also include prisoners who had belonged to the armed forces, or who had even taken an active part in the hostilities, prior to their detention.31 A certain link with the internal conflict must be present, but that is not disputed in this case.

71. The following details emerge from the documents in the case file and the trial proceedings. From 1980 onwards, a large proportion of the rural region of Afghanistan was controlled by the Mujahideen and related Islamic militias as well as other groups of resistance fighters, while the Afghan communist regime, to which the defendant belonged, largely controlled the major cities and their immediate surroundings.

72. It also appears from the documents in the case file and the trial proceedings that persons including members of the armed forces who were suspected of involvement with the aforementioned groups of fighters were arrested and taken to the 'remand centre' at the KhAD-e-Nezami's complex.

73. The three witnesses mentioned by name in the notice of summons and accusation have stated that they were held in detention in the aforementioned complex in the period to which the charges relate.

74. Since there is sufficient corroborative evidence to prove that the three persons mentioned by name in the indictment were actually detained there in the period to which the charges relate (and that they were therefore not (or no longer) taking part in the hostilities), the Court of Appeal concludes, taking all these factors into account, that the victims named in the indictment are among the persons to whom common article 3 and the Second Additional Protocol seek to offer protection. The defence's case is therefore unsuccessful in this regard.

6.5 Torture and cruel (inhuman) treatment

75. The defendant is accused - in brief - of committing (or being a co-perpetrator of) or permitting as a superior acts of torture and/or cruel (inhuman) treatment and/or other forms of aggravated violence in respect of the victims named as [victim 1], [victim 2] and [victim 3].

76. The Court of Appeal will first consider whether the acts described in the indictment, if declared proven, can be classified as acts of physical violence, and more specifically as cruel treatment and torture.

77. The prosecution service adopted the position - put briefly - that the acts of violence against each of the victims that are listed in the indictment, viewed in relation to one another and as a whole, can be classified with regard to each of these persons as torture and therefore as cruel and inhuman treatment within the meaning of the aforementioned article 3. The defence did not submit any arguments in response to this position of the prosecution service in the appeal proceedings, other than asserting that it is impossible to prove that the defendant committed the actual acts concerned.

78. Taking into consideration the substance of the statements made by the named victims, the Court of Appeal agrees with the prosecution service that the acts committed against each of the named victims that are included in the charge, viewed in relation to one another - if found to have been proven - should be classified as torture and/or cruel (inhuman) treatment. Having regard to the above, the Court of Appeal sees no reason to consider at greater length the concepts of torture and/or cruel (inhuman) treatment, or the interpretation of these concepts that follow (in part) from the various relevant international conventions and international law.

6.6 Considerations relating to count 1 of the indictment.

79. In count 1, the defendant is accused, in short, of perpetrating (or co-perpetrating) acts of torture and/or cruel and/or inhuman treatment and other forms of aggravated violence in respect of the victims named as [victim 1] and [victim 2]. The defendant has denied the charges.

6.6.1 Reliability of the evidence in relation to [victim 1],

80. The defence has alleged that the statements made by [victim 1] (hereafter: [victim 1]) are unreliable and cannot therefore be used in evidence. The defence also takes the position that the defendant should be acquitted of the acts of violence committed against [victim 1] as described in count 1.

The prosecution service has also demanded the defendant's acquittal on count 1, albeit on other grounds, namely the lack of corroborative evidence.

81. In this regard, the Court of Appeal considers as follows. The witness [victim 1], who is also allegedly a victim in this case, has made several statements, both in the case against the defendant and in the investigation in case LJN RL5051 against the defendants [head of the KhAD-e-Nezami] and [head of the investigation and interrogation division of the KhAD-e-Nezami].

82. In the investigation in case LJN RL5051, this witness made a statement to the police on 31 January 2005, besides which he was examined by the examining magistrate on 30 May 2005, 4 and 5 July 2006, and 9 January 2007. These statements were added to the defendant's criminal file. In the case against the defendant, [victim 1] made a statement to the police on 27 March 2006 and to the examining magistrate on 25 February 2007.

83. To assess the case presented by the defence, the Court of Appeal will evaluate the aforementioned witness statements and the related other items of evidence below. The essence of the witness statements cited to this end is given where relevant.

84. Before proceeding to this evaluation, the Court of Appeal wishes to make the following observation. In the cases against the aforementioned [head of the KhAD-e-Nezami] and [head of the investigation and interrogation division of the KhAD-e-Nezami], this Court of Appeal found, in brief, by judgments of 29 January 2007, that it had been proven that physical violence, cruel, inhuman treatment and torture had been committed against [victim 1] in that he had been kicked on the shinbone and kicked and beaten about the body, he had been kept awake for days on end and forced to stand outside in the cold during those days, one or more of his fingers had been held forcibly between a door and the door jamb after which the door had been slammed shut while his finger or fingers were still between the door and the jamb, and part of his finger had been cut off without an anaesthetic, in Kabul in the period from 1 October 1985 to 1 February 1986. The Court of Appeal, in its current composition, does not wish to question this judgment, for which it finds the evidence to be convincing. The Supreme Court has since upheld this Court's rulings in both these cases, by judgments of 8 July 2008.

85. The question that is now before the Court of Appeal is whether it can be proved lawfully and convincingly that the defendant fulfilled the role of perpetrator or co-perpetrator in the specific forms of physical violence described in count 1 of the indictment. As already noted, in the appeal proceedings, the prosecution service adopted the position that the defendant should be acquitted, as the defence too has argued.

6.6.2 Evaluations of the statements made by [victim 1]

86. In case LJN RL5051, the witness [victim 1] stated to the police on 31 January 2005 that he and others had been taken captive by officers of the KhAD on 19 Ghaus 1364 [10 December 1985 - Court of Appeal] and taken to the KhAD-e-Nezami. He was made to stand with his face to the wall on the KhAD-e-Nezami's grounds. That same evening he was taken to an interrogation room and kicked and beaten by the interrogators. One of these interrogators was named [interrogator 1]. After this interrogation, he was taken outside and made to stand in the yard all evening and was not allowed to sleep. The witness stated that on the second day too, he had been interrogated and tortured in the presence of [head of the investigation and interrogation division of the KhAD-e-Nezami]), whom he was able to identify from photographs he was shown by the reporting officers.

He also stated that he was again forced to stand outside all night and that it was very cold. On the third day he was again beaten and kicked. He stated that the scars on his shins, which he showed the reporting officers, had been caused by kicks administered by [head of the investigation and interrogation division of the KhAD-e-Nezami] and his interrogators. On the fourth or fifth day he was taken to an interrogation room. [head of the investigation and interrogation division of the KhAD-e-Nezami] entered the room and put pressure on the interrogators by asking him [victim 1] why he had not yet confessed. The interrogators grabbed him and forcibly held one or more of the fingers of his right hand between the door and the door jamb. According to the witness, however, [head of the investigation and interrogation division of the KhAD-e-Nezami] wanted the fingers of his left hand to be held between the door and the door jamb, so that he would still be able to write with his right hand. He was held in the firm grip of an interrogator, while a second interrogator sat on a chair. His fingers were held in the hinge side of the door, after which a third interrogator slammed the door shut several times. The pain caused him to lose consciousness. When he came round, [head of the investigation and interrogation division of the KhAD-e-Nezami] was there, and he allegedly instructed his officers to carry on torturing him [victim 1]. As a result of this torture, he stated that he later lost the fingertip of his left middle finger. In subsequent interrogation sessions, his shinbone was kicked. After about 20 days, someone came to see him. He stated that the fingers of his left hand were in a poor state. This person allegedly cut off the fingertip of his middle finger without any anaesthetic, which was extremely painful. After he had lost this fingertip, the interrogators kicked his shinbones. [Victim 1] also stated that [head of the investigation and interrogation division of the KhAD-e-Nezami] sometimes put pressure on the interrogators and that he heard [head of the investigation and interrogation division of the KhAD-e-Nezami] say to the interrogators that he [victim 1] must be made to confess, however this was achieved. According to the witness, he was subjected to worse torture when [head of the investigation and interrogation division of the KhAD-e-Nezami] was there, and on one occasion, in the latter's presence, he was hit on the back with the broken wooden leg of a chair. Finally, he stated that he had often resisted, as a result of which he had acquired a permanent bump on his right hand, that he is still troubled by symptoms and is unable to concentrate, that he sometimes feels immense pressure in his head, and that he experiences pain in both his hand and his legs. Finally, the witness stated that he wished to report [head of the investigation and interrogation division of the KhAD-e-Nezami] to the police for assault.

87. In his statement to the examining magistrate of 30 May 2005 in case RL 5051 against [head of the KhAD-e-Nezami] and [head of the investigation and interrogation division of the KhAD-e-Nezami], [victim 1] also stated that [head of the investigation and interrogation division of the KhAD-e-Nezami], whose subordinates addressed him as 'Saheb', put pressure on the interrogators, saying, 'put the prisoners under pressure'. He also stated that he had been tortured and interrogated by public prosecutors (tsaranwal).

88. In the same case, [victim 1] stated to the examining magistrate on 4 and 5 July 2006 that Russians had been present during interrogations, and that they also asked questions. The interrogations were initially conducted by an interrogator, after which the file was passed on to the public prosecutor. There too, the victim was ill treated. He stated that [head of the investigation and interrogation division of the KhAD-e-Nezami] was responsible for the torture and that this torture was worse when he was present. He encouraged the interrogators to beat the witness. The witness also stated that [head of the investigation and interrogation division of the KhAD-e-Nezami] gave orders for an electric current to be administered, with which the interrogators complied.

89. During his interrogation of 27 March 2006, when, according to the reporting officers, they informed [victim 1] that they wanted to put supplementary questions to him in relation to his arrest and detention, and in relation to the defendant, whom they mentioned by name, the witness was asked for the first time what he knew about the defendant. The witness stated in response that the defendant occasionally entered the interrogation room where he was being tortured. He described the defendant as someone in a kind of supervisory position, who put the interrogators under pressure by ordering them to secure a confession. He stated that during one of these interrogations, the defendant came in, said that he had to make a confession, and kicked him hard on the shinbone with military boots, several times. The witness then again displayed scar tissue on his shins. He also stated that he had heard one of the interrogators calling the defendant 'Saheb', a sign of respect for a higher-ranking officer. He had seen [the defendant] several times during interrogations and had sometimes been beaten and sometimes kicked by him. Following these acts of violence, he confessed. Finally, he stated that [witness 2], [witness 3] and [witness 4] could confirm that he had been tortured by the defendant. [Witness 4], in particular, had complained about the acts of torture committed by the defendant.

90. Finally, on 25 February 2007, [victim 1] stated to the examining magistrate in the case against the defendant that he was unable to recall his earlier statement of 31 January 2005. He also stated that together with one [witness 4] he had been tied down at the KhAD-e-Nezami and that the defendant had kicked him on the shinbone, as he had stated before. He also stated that the defendant had put the interrogators under pressure and intimidated them, urging them to torture him to secure a confession.

91. In the diverse statements quoted above, viewed in relation to one another and as parts of the whole, [victim 1] made varying statements concerning the persons whom he holds responsible for the acts of violence perpetrated against him as described in the indictment. At one point these acts are attributed in whole or in part to the aforementioned [head of the investigation and interrogation division of the KhAD-e-Nezami] and others, with the defendant's name not being mentioned at all, while elsewhere [victim 1] holds the defendant responsible for acts of violence described in earlier periods of questioning. What is more, [victim 1] has occasionally indicated that he may have mixed up the names of those who interrogated him.

92. [Victim 1] has stated, when asked to explain, that he had not mentioned the defendant's name in relation to the acts of violence perpetrated against him because the reporting officers had not specifically asked him about the defendant. The Court of Appeal does not consider this to be credible, having regard to the detailed nature of those statements and most notably to the facts that the witness did specifically name an interrogator and [head of the investigation and interrogation division of the KhAD-e-Nezami], that he mentioned that he had also been tortured by public prosecutors, and that he described the details of the acts of violence committed by them and/or others. It is all the less credible, since when the examining magistrate examined [victim 1] on 4 and 5 July 2006 and explicitly asked him who was responsible for torturing him, [victim 1] replied that [head of the investigation and interrogation division of the KhAD-e-Nezami] was responsible.

93. [Victim 1] has also indicated that the witnesses [witness 2], [witness 3] and [witness 4] can all confirm that he was ill-treated by the defendant and that the prisoners [victim 3], [witness 5] and [witness 6] can also corroborate his story. The Court of Appeal has not found any statements by the said [witness 2], [witness 3], [witness 5] or [witness 6] in the case file.

i. The witness [witness 4]

94. In case no. LJN RL5051, [witness 4], who was mentioned by [victim 1] in his aforementioned statement of 27 March 2006, stated both when questioned by the police on 3 February 2005 and when later examined by the examining magistrate on 3 June 2005, that he had been arrested together with [victim 1] by the KhAD-e-Nezami, that he had seen that the latter had been forced to stand outside at night while shackled, that he had seen [victim 1] later and heard from him that he had been tortured, but that he did not know who had tortured him. On 29 March 2006, [witness 4] further stated, unlike [victim 1], that his interrogation had not been attended by the defendant, and that he was not acquainted with the latter in any other way. He repeated this to the examining magistrate on 28 February 2007. He further stated that he actually had no knowledge at all of the defendant, and that he had heard the latter's name during the final interrogations and that he had once heard [victim 1] mention him.

ii. The witness [victim 3]

95. The person [victim 3], who the witness [victim 1] said in his statement of 25 February 2007 would be able to corroborate his story (about the acts of torture meted out to him) stated before the examining magistrate on 5 March 2007 that he had actually seen [victim 1] being tortured. He said nothing here about any possible involvement of the defendant in this torture. He also stated that [victim 1] had never mentioned the defendant's name to him. When he was examined as a witness during the appeal proceedings of 26 March 2009, [victim 3] repeated these assertions when asked about them.

96. On the basis of all the above statements, viewed in relation to one another and as parts of the whole, the Court of Appeal agrees with the defence that the constant changes in the statements made by [victim 1] regarding the defendant's role in the acts of violence in the indictment undermine the reliability of those statements, and that there is no corroborative evidence, or in any event insufficient reliable corroborative evidence, for the defendant's involvement in the acts of violence committed against [victim 1] as charged in the indictment, so that there is insufficient lawful and convincing evidence that the defendant was the person responsible for the acts of violence against [victim 1] as charged in the indictment. The above is not altered by the fact that [victim 1] recognised the defendant in a photo identification.

98. The defence argues, in brief, that the statements made by [victim 2] are also unreliable and cannot be used in evidence, and that his statement is not supported by any other objective corroborative or forensic evidence. In the view of the defence, on these grounds too the defendant should be acquitted. The prosecution service also seeks the defendant's acquittal on count 1 of the indictment in relation to the perpetration (or co-perpetration) of acts of violence against [victim 2], but on different grounds.

99. In this regard, the Court of Appeal considers as follows. The defendant is accused, in brief, of having perpetrated, or co-perpetrated, acts (or serious acts) of violence against the victim [victim 2], in accordance with the facts described in count 1 of the indictment.

100. The witness [victim 2], the son of [name of victim 2's father], who is also allegedly a victim in this case, made a statement to the police on 29 May 2006. He was subsequently heard by the examining magistrate on 2 March 2007.

101. To assess the defence's case in this connection, the Court of Appeal will proceed to evaluate the aforementioned witness statements and the related other evidence. The essence of the witness statements quoted to this end is given where relevant.

6.7.2 Assessment of the statements made by [victim 2]

102. [Victim 2] stated to the police on 29 May 2006 that he had been arrested by the KhAD-e-Nezami in 1362, in the twelfth month, and taken to a building belonging to the intelligence service in Shar-e-Now [the Court of Appeal understands this to mean Kabul] the following day. After his arrest he was transferred to Bakhram, to the KhAD-e-Nezami in Kabul. Regarding the violence used against him there, he stated that one of the soldiers struck him there. Later on he was taken to a room where he was made to sit opposite a man wearing a suit. He later heard from fellow-prisoners that this was [interrogator 2]. During the interrogation, he saw the interrogator kick him in the neck and fell to the floor. The interrogator then stamped his feet on different parts of his body. Then a soldier struck him with the butt of his rifle. Two days later he was again taken to [interrogator 2], who told him to lie on the floor. He sat down on the floor, at which the interrogator told him to lie down and kicked him on the leg. [Interrogator 2] attached two electric wires to his toes. He was kicked again.

He saw [interrogator 2] put the plug in the socket and at that moment he felt a powerful electric shock course through his body, so powerful that he shot to his feet. Immediately afterwards he lost consciousness. When he came round, he felt pain everywhere. He still has great difficulty concentrating and his back frequently troubles him. He further stated that he had been detained in the KhAD-e-Nezami building for a total of four months, during which time he was interrogated two or three times a week, given electric shocks three times in total, and that he was struck each time he was interrogated. [Victim 2] also stated that prisoners later told him that there was a man working in the KhAD-e-Nezami building who was as powerful as God. His name was Faqir.

103. [Victim 2] further stated that after his transfer to the Pol-i-Charki prison, he had spoken to persons named [witness 7] and [witness 8] about the torture he had received at the hands of the KhAD-e-Nezami. Finally, he stated that he had been arrested about 18 months earlier than [victim 1], whom he knew from before, and that he had not been detained together with him.

104. The reporting officer asked this witness too whether he had anything to state concerning a man called [defendant]. The Court of Appeal would note, as the trial court noted, that the witness had not mentioned this name of his own accord before then.

He stated that the person who had interrogated and tortured him on each occasion was [interrogator 2]. The Court of Appeal will consider the substance of the statement made by [victim 2] concerning [the defendant] at a later stage.

105. When he was examined by the examining magistrate on 2 March 2007, [victim 2] stated that, contrary to what he had stated before, he had been arrested at the end of 1364 by the head of the KhAD section of his unit and then taken to the KhAD-e-Nezami in Kabul. At the KhAD-e-Nezami he had been examined by [interrogator 3], the deputy of [head of the KhAD-e-Nezami], and by [interrogator 2], the deputy head of the investigation and interrogation division. He stated that he had been held in detention for over four months. During interrogation he was beaten and kicked, on one occasion on the foot, besides which an electric current was administered to him. He also stated that on one occasion he had been punched and kicked by [interrogator 3], who he said, when asked, was the same person as [defendant]. He calls him [name of interrogator 3] because that was his family name and he was known by this name. According to the witness he was famous there and was addressed as tsarenwal (public prosecutor) [name of interrogator 3]. He was a public prosecutor. The witness was unable to give his forename.

106. With regard to [victim 1], to whom he had referred in his earlier statement to the police, he stated in this later interview that he had been detained with him before and knew him from then.

107. It must be conceded to the defence that the statements made by [victim 2] contain a number of striking inconsistencies. For instance, [victim 2] gives different dates for his own arrest, besides which his statement about the events leading up to this arrest conflicts with the explanation given by [witness 8]; this will be discussed below. The dates he gives for the arrest and imprisonment of [victim 1] are also inconsistent. Furthermore, the latter has not confirmed the contention that the two men were held in detention at the same time. In addition, this witness failed to recognise the defendant in a photo identification. Finally, there are inconsistencies concerning who was present during his interrogations and who was involved in the violence committed against him; this will be discussed below.

108. On the other hand, this witness has made consistent statements regarding the nature of the violence used against him. Furthermore, the sections of his statement relating to this are corroborated by the statement of [witness 8], to whom [victim 2] allegedly spoke about his experiences at the KhAD-e-Nezami.

i. [witness 8]

109. [Witness 8], who was named by the victim [victim 2], and who was born in Kapisa, stated to the police on 27 May 2006 that he had been arrested in 1364, on the 15th day of the eleventh month, and taken to a complex. Later on he heard from [victim 2], who was known to him, that these were the premises of the KhAD-e-Nezami. He was taken to a room in this building and saw several men seated there. He recognised one of them as [victim 2], whom he knew from Kapisa. This [victim 2] told him that he was an air force officer and that he had been arrested and detained there ten days earlier. He saw that this [victim 2] had great difficulty walking and that he had injuries elsewhere on his body. He saw blood on the man's foot and legs, which evidently came from these injuries. He also saw weals on [victim 2]'s back, which were still very bloody. He also stated that [victim 2] told him that these injuries had been caused by torture in the building they were in. When examined by the examining magistrate on 7 March 2007, he added that the name of [victim 2]'s father was [name of the father of victim 2].

110. The victim [victim 2] estimates that his fellow-prisoner [witness 8] (both state that they were born in 1347) was about fourteen or fifteen years of age at the time when they were both being held in detention, which appears to suggest that they were arrested in 1362 rather than in 1364. Be that as it may, the assertion that they were both detained at the same time is nonetheless corroborated by the aforementioned statement by [witness 8].

111. This being the case, the Court of Appeal holds, weighing all the evidence, that it has been lawfully, convincingly proven that violence was used against [victim 2] as described factually in the indictment. The next question for the Court of Appeal to consider is whether or not it can also be proven that the defendant fulfilled the role of perpetrator, or co-perpetrator, in these forms of physical violence.

112. The Court of Appeal has already noted that [victim 2] has made highly varied and inconsistent statements regarding the persons who were allegedly responsible for the violence used against him, and more especially regarding the defendant's role in this violence. When he was brought before the examining magistrate on 2 March 2007, he stated that he had first seen the defendant in the courtyard of the KhAD-e-Nezami complex. Public prosecutors were standing in the courtyard. He did not recognise him at the time, and found out later that one was [defendant's name]. In response to a question put by the examining magistrate, the witness replied that the defendant had not been present in person during his periods of interrogation.

113. The above conflicts with his earlier statement to the police on 29 May 2006. On that occasion, when one of the reporting officers asked him if he could state anything about someone named [defendant's forename], he replied that he knew, when he was being held in detention in the premises of the KhAD-e-Nezami, that [defendant's forename] was a powerful man who tortured prisoners and was very cruel. He discussed this with other prisoners. [Victim 2] further stated that during his periods of interrogation by [interrogator 2], the defendant frequently entered the room - at least once a week, in any event. On these occasions he noticed that the defendant would stay and watch the interrogation for a while, and at some point he would ask [interrogator 2] to step outside for a moment. When [interrogator 2] returned, he behaved far more aggressively, shouted more, and dealt him much harder and more frequent blows.

According to [victim 2], the defendant also saw on one of his visits that [victim 2] was injured. For according to his own testimony, [victim 2] was badly beaten each time he was interrogated, and had blood and injuries on his face. The defendant asked [interrogator 2] to step outside for a moment and then came back [sic] into the room shortly afterwards. [Interrogator 2] again asked him questions and [victim 2] stated that he did not know anything. [interrogator 2] then came up to him and [victim 2] saw and felt [interrogator 2] striking him repeatedly. When the defendant came in again, he heard the latter say: 'Hit him hard'. After that, he saw and felt [interrogator 2] striking him in the defendant's presence. He then heard the defendant say 'Hit him harder', after which he saw and felt [interrogator 2] hitting him harder still. Finally, he stated that he knew that the person in whose presence he was being struck by [interrogator 2] was [name of defendant] because [interrogator 2] greeted him with the words: "Mr [defendant's forename], come in'. [Victim 2] described the defendant as a tall, heavily-built man. He had a broad jaw and was dressed in civilian clothes. This witness stated that he saw the defendant one more time after this in the KhAD-e-Nezami building. He was standing beside [head of the KhAD-e-Nezami] at the time. When he was subsequently shown a series of photographs, including a photograph of the defendant, and asked if he recognised any of the people concerned, he stated that the faces of numbers 2 and 5 looked familiar to him. He believed that they worked at the KhAD-e-Nezami. He did not positively recognise [defendant's name] as the person to whom he had referred in his statement.

114. When the examining magistrate asked [victim 2], on 2 March 2007, whether a public prosecutor had been present when he was being interrogated at the KhAD-e-Nezami, [victim 2] replied that [the defendant] occasionally entered the room when [interrogator 2] was interrogating him. He would punch and kick him, and tell others to lay him on the ground and extract a statement. He also stated that [defendant] was known as Faqiri, that he was a public prosecutor, and that he was addressed as tsarenwal [the Court of Appeal understands this to mean 'public prosecutor'] Faqiri. Finally, he stated that after his release, he and other prisoners had discussed the torture committed by [defendant's name]. However, there is no corroborative evidence for this assertion.

115. Notwithstanding the fact that, as the Court of Appeal has already noted, a witness's memory may be adversely affected by the passage of time and certain traumatising events, this cannot and must not work to the defendant's disadvantage. The Court of Appeal would note that the two statements contain numerous discrepancies and points left unclear, in matters such as the defendant's name, his position as referred to by the victim, and the different roles in the interrogations that are imputed to the defendant, added to which the witness did not positively recognise the defendant in a photo identification as the man about whom he had made a statement. Added to this, this witness's statements regarding the defendant's involvement in his interrogations and the acts of violence that accompanied them are not corroborated by any other evidence.

116. Weighing all the evidence, the Court of Appeal therefore concludes that the statements made by [victim 2], viewed in relation to one another and as parts of the whole, are not sufficiently reliable to prove convincingly that the defendant was involved in the acts committed against [victim 2] as a perpetrator or co-perpetrator.

117. This being the case, the defendant should therefore be acquitted of the charges laid against him in count 1 of the indictment.

7. Considerations relating to count 2 of the indictment

118. The charge laid against the defendant in count 2 of the indictment in the present case, put briefly, is that he intentionally permitted, as a superior, torture and/or cruel (inhuman) treatment and other aggravated forms of violence against the victims [victim 1], [victim 2] and [victim 3].

7.1 Aggravated acts of violence against [victim 3]

119. The Court of Appeal will first consider whether violence was committed against the said [victim 3] as charged in the indictment. Following the investigation in case RL 5051, [head of the KhAD-e-Nezami], head of the KhAD-e-Nezami, was acquitted by judgment of 14 October 2005 handed down by The Hague district court, on the application of the public prosecution service, of criminal involvement, under the WOS, in the acts of violence committed against [victim 3]. [Head of the investigation and interrogation division of the KhAD-e-Nezami] was also acquitted of the aggravated acts of violence committed against [victim 3].

121. In the investigation in case LJN RL5051, [victim 3] made a statement to the police on 25 and 26 January 2005. Prior to this, on 27 December 2004, someone who said he was [victim 3] was examined by telephone. [Victim 3] was subsequently brought before the examining magistrate for questioning on 2 June 2005 and 3 July 2006. These statements have been added to the present case file. In the case against the defendant, [victim 3] made a statement to the police on 24 March 2006 and to the examining magistrate on 5 March 2007. The essence of these statements is as follows. After he was arrested and transferred to the KhAD-e-Nezami, he was visited by the defendant and by [head of the investigation and interrogation division of the KhAD-e-Nezami]. The defendant, who took the lead in this interview, put pressure on him to make a confession, and in the subsequent period, he was tortured by [head of the investigation and interrogation division of the KhAD-e-Nezami] and others. The defendant has denied all these allegations.

122. In his statement of 25 January 2005, [victim 3] claimed that he had had one discussion with [head of the investigation and interrogation division of the KhAD-e-Nezami] and [defendant's name], during which he was advised in a friendly manner to cooperate in the investigation, but that he was later subjected to ill-treatment by [head of the investigation and interrogation division of the KhAD-e-Nezami] in person. He was also forced to stand outside at night time with his hands in the air and not allowed to sleep. He repeated this allegation later to the examining magistrate. He also stated that [head of the investigation and interrogation division of the KhAD-e-Nezami] had kicked and beaten him, that [interrogator 4] and [head of the investigation and interrogation division of the KhAD-e-Nezami] had threatened him with torture, and that [interrogator 4] had also kicked him in the back.

123. In an additional statement of 26 January 2006, this witness further stated that an electric current had been administered to him in the presence of [head of the investigation and interrogation division of the KhAD-e-Nezami]: wires had been attached to his big toe while he lay on his back on the ground with a table-top on his chest, which resulted in a painful tingling sensation right up into his head. After that, an electric current was administered again on the orders of [head of the investigation and interrogation division of the KhAD-e-Nezami]. He could barely walk, and was again forced to stand outside at night. He also stated that he had been kicked by [head of the investigation and interrogation division of the KhAD-e-Nezami] on his ankles, the upper part of his body, and his abdomen. He was in a bad state as a result.

On one occasion he had been taken to a room occupied by Russian advisors, where four interrogators were present. His legs were raised and he was beaten with wet branches on his bare feet. At one point [head of the investigation and interrogation division of the KhAD-e-Nezami] entered the room and placed his foot on his throat, urging him to confess, because otherwise [head of the investigation and interrogation division of the KhAD-e-Nezami] would break his teeth. He had again been beaten in the presence of, and by [head of the investigation and interrogation division of the KhAD-e-Nezami] on several occasions after this.

124. When he later appeared before the examining magistrate on 5 March 2007, he stated that [interrogator 4] was the person who had interrogated him, that he was the one who had administered an electric current and brought burning, red-hot coals, and asked him to hold them in his hand. Finally, he stated that he had been detained at the same time as [victim 1]) and that he had told his friends about the torture he had suffered.

125. When testifying during the appeal proceedings on 25 and 26 March 2009, the witness [victim 3] spoke only in general terms about the acts of violence he had suffered, including torture. He stated that he had been arrested in the year 1364 in the night of 19/20 in the eighth month and taken to the KhAD-e-Nezami complex in Kabul. He was sometimes forced to stand outside from 9 p.m. until the following morning with his hands against the wall, even though it was winter. In a period of some three months, he was interrogated repeatedly almost every day. He further stated that he had told the truth in his previous statements to the police and the examining magistrate, including his allegations of torture.

126. Regarding his meeting with the defendant on the evening of his arrest, [victim 3] was willing to make a statement only after the Court of Appeal urged him to do so. He stated that he did not wish to make any accusation against the defendant in that connection. The Court of Appeal holds that this undermines his credibility, especially since the witness has given very divergent accounts of the nature and substance of his encounter with the defendant in his various statements (calling it cordial in one, and downright menacing in another), since the defendant has explicitly denied that any such encounter between him and [victim 3] ever took place, and since the fact that such an encounter took place is not corroborated by any other evidence.

i. The witness [witness 9]

127. The only other evidence that (in part) corroborates the statements made by [victim 3] is the statement made by [witness 9] on 9 June 2006. This witness [witness 9] stated that he himself had been arrested in 1364, in the ninth month (Ghaus). He also stated that he had been tortured several times at the KhAD-e-Nezami. He further stated that he had heard [victim 3]'s screams of pain through the corridors and that he is certain that the latter was being tortured. He states that he later spoke to [victim 3] in Pol-i-Charki, where [victim 3] allegedly told him that he had been subjected to extreme torture.

128. The Court of Appeal would note that the said [witness 9] was examined by telephone and that no further verification took place of his identity. What is more, according to an official report of 11 April 2007 describing the examining magistrate's findings, it had not been possible to subsequently question him before the examining magistrate, as a result of which the defence counsel, in particular, had had no opportunity to put questions to him. The statement that has been quoted, by the person referring to himself as [witness 9], contains no indication that he personally witnessed the violence used against [victim 3], nor does it indicate the nature and extent of this violence. Nor has any relevant forensic medical evidence been submitted to corroborate the premise that [victim 3] was actually tortured or that he was in any other sense a victim of acts of violence as he has stated. The questioning of [victim 3] at the appeal hearing likewise failed to clarify this point.

129. Weighing all the evidence, the Court of Appeal therefore concludes, contrary to the finding of the District Court, that insufficient lawful and convincing evidence has been presented that would constitute grounds on which to determine beyond all reasonable doubt that [victim 3] was a victim of the violence described in count 2 of the indictment. This being the case, the Court of Appeal will not assess the charge laid against the defendant in relation to [victim 3] in count 2 of the indictment.

7.2 'Command responsibility'

130. The defence adopted the position that the defendant should be acquitted of the charge in count 2 of the indictment. The defence has argued, in brief, that section 9 WOS refers to a formal relationship of authority or command structure between superior and subordinate and does not include a de facto relationship. But the defendant had no formal command relationship with the persons in the investigation and interrogation division or with the interrogators themselves. What is more, the existing (formal) command structure was further complicated by Russian advisors. It is also disputed that the defendant exercised 'effective control' over the interrogators. The defence also argues that the concept of intent should be construed narrowly. It argues that section 9 WOS refers only to someone who 'intentionally permits' certain acts, and hence does not make it a criminal offence to fail to punish a subordinate, with which the defendant has also been charged. The defendant must therefore be acquitted of this latter charge, according to the defence.

131. The Court of Appeal would note first and foremost that in applying section 9 of the WOS, the prosecution service proceeds on the assumption that it is sufficiently clear from the legislative history of the Wartime Offences Act that the relationship between 'superior' and 'subordinate' may be determined by factual (de facto) as well as formal (de jure) relations of authority. The prosecution service also suggests deriving support here from international law, which refers to 'effective control' and 'actual or reasonable knowledge'. In relation to this knowledge, or mens rea, the prosecution service takes the view that the Dutch concept of intent is applicable, including recklessness.

Finally, the prosecution service agrees with the defence proposition that the defendant should be acquitted of the charge of 'failure to punish a subordinate'.

7.2.1 The scope of section 9 of the WOS

132. In count 2 of the indictment, the defendant is charged with having breached section 9 in conjunction with section 8 of the WOS. At the time of the indictment, the description of the offence punishable under section 9 of the WOS read as follows:

'Any person who wilfully permits an offence as described in the previous section to be committed by a subordinate shall be liable to the same sentence as that carried by such offences.'

The description of the offence punishable under section 8 of the WOS is already given above, in section 5.1 of this judgment.

The legal framework in which count 2 of the indictment must be assessed consists of the elements of sections 8 and 9 of the WOS. In the light of the arguments put forward by the defence, it is primarily the elements 'subordinate' and 'wilfully' that require consideration. If the existence of a relationship of superior/subordinate cannot be demonstrated, however, the Court of Appeal will not go on to assess the required concept of intent. The Court of Appeal must therefore begin by discussing the relationship of authority between superior and subordinate. The Court of Appeal concurs with the defence and the prosecution service in noting that the offence described in section 9 of the WOS relates exclusively to someone who 'wilfully permits' certain acts, and, in contrast to the relevant provisions of international law, does not define it as a criminal offence to fail to punish a subordinate.

133. It must be proven that 'a subordinate' has committed acts within the meaning of section 8 of the WOS. In other words, a relationship of subordination must exist between the actual perpetrators of the acts of violence and the superior referred to in section 9 of the WOS. This relationship includes, in any event, all those who are under the person's command; the superior is obliged to supervise their behaviour and as their superior, to prevent and correct certain kinds of conduct, if necessary. From the Explanatory Memorandum accompanying the WOS, it is clear that the tenor of section 9 of the WOS corresponds to the text incorporated into article 27a, para. 3 of the Criminal Law (Wartime Occupation) Decree (BBS), which in turn derives from article 91, para. 2 of the Military Criminal Code, which ceased to apply when section 9 of the WOS entered into effect.32 The BBS related to criminal offences committed 'during the present war'.

Article 27a of the BBS relates to the relationship between superior and subordinate, and the relevant passage of this article reads as follows:

134. The aforementioned provision, which filled a gap in the Netherlands' jurisdiction in respect of the members of foreign armed forces who had acted within the scope of their formal powers,33 constitutes a hybrid form of the application of national and international norms.

It further appears from the Explanatory Memorandum accompanying the bill containing article 27a of the BBS that the relationship between superior and subordinate within the meaning of the provision does not relate exclusively to military relationships, but in the context of the provision in para. 1, also relates to any form of subordinate relationship in government or public service.34 In view of this, the Court of Appeal holds, contrary to the submissions of the defence, that the later legislature too, in the framework of section 9 of the WOS, likewise allowed for the possibility of a relationship of authority based on a different structure.

7.2.2 The relationship between the superior and his subordinate in an international context

135. The above leads the Court of Appeal to conclude that in assessing the relationship of authority between superior and subordinate, the element 'subordinate' in section 9 of the WOS must be interpreted within the context of a hierarchical relationship between superior and subordinate. Here it is necessary to consider de facto relations between superior and subordinate, as well as the de jure relationship - the hierarchical relations based on laws and decrees within the organisation within which these persons are employed. In addition, the superior must be actually capable of intervening on the basis of this hierarchical relationship if his subordinate misbehaves, in any event if the latter commits criminal offences within the meaning of section 8 of the WOS.

136. The Court of Appeal had recourse to the international laws of war, not only in written law as enshrined in international agreements, but also in international customary law, where this relates to war, in order to flesh out the legal interpretation of the relationship of authority between superior and subordinate. In this connection, reference may be made to the aforementioned doctrine of 'command responsibility', which can be found inter alia in the above-mentioned article 7, para. 3 of the Statute of the ICTY and article 6, para. 3 of the Statute of the ICTR, as well as in judgments handed down in this context by domestic courts and ad hoc tribunals.35

137. The Court of Appeal will devote a few general observations to the doctrine of command responsibility before setting out its conclusion in this regard in the present case.

138. In order to be held liable under the criminal law as a superior for intentionally permitting subordinates to commit the crimes in the indictment (including failure to intervene), the superior, as already noted, must be, or have been, in a hierarchical relationship, whether direct or indirect,36 to those who actually committed the acts of violence and torture in the indictment.37 As already noted, this may be either a de jure or de facto relationship of authority.

139. A de jure relationship of authority between superior and subordinate is formally established or affirmed by law or decree.38 De jure powers may be conferred either verbally or in writing.39 The mere fact that a defendant has a higher rank or position in a hierarchical military organisation does not automatically mean that he is de jure the superior of all those lower in rank than he, if his position is not accompanied by the actual powers and authority that are normally attached to that position.40 To establish liability, it is therefore necessary to look at the effective exercise of those powers or authority rather than narrowly considering a person's formal position. What counts here is 'actual authority or control' as exercised by the superior.41

140. A de facto relationship of authority can be defined as a relationship in which one party - the superior - possesses sufficient authority over one or more other persons to prevent them from committing crimes (or to punish them for doing so afterwards). This is a factual relationship of authority, which is not based on laws or regulations, or on internal rules. For a relationship to qualify as one of de facto authority, there must be an expectation that his orders will be obeyed on the part of the superior, and a parallel expectation of their subordinate status on the part of those subject to that authority.42

141. Not only must the superior be in the same chain of command as those who have actually committed the alleged violations of humanitarian law, but this superior must also be in a position that is vertically above the perpetrators. The qualification 'superior' is not a theoretical concept that applies to every superior in the line of authority; it relates exclusively to a superior who bears individual criminal liability in relation to the perpetrators of the acts concerned, since the latter, as subordinates, are under his de facto control or authority. For the rest, the superior's position in the hierarchy may clearly be relevant when determining the nature and scope of his obligations and establishing whether he fulfilled these obligations after he learned of the perpetration, or possible perpetration, of criminal offences by his subordinates. If the command chain in the hierarchical structure is broken, a superior cannot, in principle, be held liable for crimes committed by individuals, unless the superior nonetheless possessed 'effective control', whether direct or indirect, over the perpetrators' actions. The positions of the superior and the perpetrators in the chain of command may also be relevant in determining whether the superior fulfilled the second requirement of mens rea. The greater the distance between superior and perpetrators, both physically and hierarchically in the chain of command, the harder it is to establish whether the superior was aware of the crimes committed (or likely to be committed) by his subordinates.

142. It is not enough to establish the existence of a de jure or de facto position of authority. It must also be established beyond all reasonable doubt that at the relevant point in time, namely at the time when, or period in which, the crimes at issue were committed, or are alleged to have been committed, the superior was actually in a position to exercise 'effective control' over the subordinates who committed the violations of international humanitarian law as charged in the indictment, and that he failed to do so.43 For the criminal liability of the superior, this means that he must have had a definite opportunity - where relevant in the present case - to prevent the crimes.44 After all, 'where there is no "effective control'', there is no "superior responsibility"'.45 It is therefore the superior's power and authority to control and supervise his subordinates' actions that forms the basis for the doctrine of 'command responsibility'.46 This command responsibility extends, moreover, to criminal offences committed by individuals who are formally not his (immediate) subordinates, provided he exercised 'effective control' over them.47

143. What is more, the 'effective control' requirement emphasises the fact that someone who has been formally appointed to command or lead others, but who is in practice unable to exercise this authority, cannot be held responsible for criminal offences committed by those who were formally, but not effectively, under his authority. 'Effective control' expresses a factual, essential, effective or operational relationship of authority. One side commands and the other side obeys. In any relationship that falls short of this norm, for instance if one side has to convince the other or ask the other to act in a certain way, there is no effective control as required by the doctrine of 'command responsibility'. What is at issue is the enforceable power to prevent subordinates from committing criminal offences and to punish those who do.

144. 'Effective control' also implies a minimum threshold of supervision, below which no criminal liability in accordance with the doctrine of 'command responsibility' can be assumed to exist. The ICTY Trial Chamber in the Halilovic case held as follows in this connection, inasmuch as relevant here:

'a degree of control which falls short of the threshold of "effective control" is insufficient for liability to attach under Article 7(3). "Substantial influence" over subordinates which does not meet the threshold of "effective control'' is not sufficient under customary law to serve as a means of exercising command responsibility and, therefore, to impose criminal liability.'48

7.2.3 Factual conclusions by the Court of Appeal

145. As noted above, the Court of Appeal holds it to be an established fact that the head of the investigation and interrogation division of the KhAD-e-Nezami, together with others, was guilty of acts of physical violence against, and the cruel and inhuman treatment and torture of, [victim 1]. The Court of Appeal further holds, in common with the District Court, that [head of the investigation and interrogation division of the KhAD-e-Nezami] was assisted in these acts by persons employed by the investigation and interrogation division, or in any event by the Afghan military intelligence service. The Court of Appeal also holds it to be an established fact, with reference to the above considerations in this connection, that aggravated acts of violence were also committed against [victim 2] by members of the KhAD-e-Nezami in the period to which the charges relate. In this connection, the Court of Appeal considers that the documents in the case file establish to a sufficiently convincing degree that torture took place (on a frequent basis) at the KhAD-e-Nezami, which the defendant does not dispute, as is clear from his statement in the proceedings at first instance; indeed, the defendant states that he himself was previously tortured by the KhAD-e-Nezami.

In arriving at its assessment, the Court of Appeal has consulted the Minister of Foreign Affairs' official report (ambtsbericht) of 29 February 2000 on state intelligence services, the Amnesty International report published in 1986, the expert report of 31 August 2005 by Dr A. Giustozzi, and the latter's expert testimony, as well as statements made by diverse other witnesses, viewed in relation to each other and as parts of the whole.

146. The Court of Appeal also concurs, likewise without further investigation, with the view of the District Court that within the KhAD-e-Nezami, the head of the investigation and interrogation division was the superior of the staff of that division and that the head of the KhAD-e-Nezami was the superior of the head of the investigation and interrogation division. Finally, given the statement made by [head of the KhAD-e-Nezami] and the defendant's assertion at first instance that he had been transferred to Kunduz during Najibullah's term of office, it can be established that the defendant was one of the deputies of the head of the KhAD-e-Nezami in Kabul, in any event at the time of the offences described in count 2 of the indictment.

147. The Court of Appeal also holds it to be en established fact that the defendant and the head of the investigation and interrogation division of the KhAD-e-Nezami had their offices in the same building of the KhAD-e-Nezami in Kabul in the period to which the charges relate, and that their rooms were adjacent to each other on the first floor. The building stood in a compound with two other buildings and accompanying annexes. Finally, the Court of Appeal would note that the defendant confirmed in the proceedings at first instance that the prisoners were taken to this complex for interrogation after their arrest.

148. Viewed against the light of the framework for assessment outlined above, the position and responsibilities of, on the one hand, [head of the investigation and interrogation division of the KhAD-e-Nezami] and his interrogators, and on the other hand, the defendant as (second) deputy of the head of the KhAD-e-Nezami, require further clarification. To assess these positions (and the relationship between them), the Court of Appeal has studied the content of the case file, which includes a large number of witness statements and other pieces of evidence, as well as the proceedings at first instance and on appeal. It must first be established whether the defendant had a de jure or de facto relationship of authority (between superior and subordinate) with [head of the investigation and interrogation division of the KhAD-e-Nezami] and his interrogators, as the perpetrators of the acts of violence/torture at issue here. The Court of Appeal must then proceed to establish to what extent the defendant did indeed have 'effective control' over the subordinates who committed the offences concerned. The essence of the witness statements relied on to answer these questions is given, where relevant.

a. Relationship of authority

149. In the proceedings at first instance, the defendant stated that in the period to which the charges relate, [head of the KhAD-e-Nezami] was the director [court of appeal: Rais] of the KhAD-e-Nezami in Kabul and that he himself was the latter's second deputy, as well as the head/director [Court of Appeal: Modir] of the intelligence division of this organisation. He also stated that he initially held the rank of colonel and later that of general, and that he was higher in rank than the head of the investigation and interrogation division of the KhAD-e-Nezami.

i. The witness [head of the KhAD-e-Nezami]

150. [head of the KhAD-e-Nezami], who was serving as head of the military KhAD in the period to which the charges relate, did not mention the defendant when he was examined as defendant in case RL 5051. In the case against the defendant, [head of the KhAD-e-Nezami] was questioned by the examining magistrate as a witness on 7 February 2007. On this occasion, [head of the KhAD-e-Nezami] stated that the defendant had been one of his deputies. The defendant was responsible for security tasks within the army and for intelligence-gathering within army units. [Head of the KhAD-e-Nezami] also stated that he issued instructions to the defendant that were related to security within the army, and that he and his deputies always held joint meetings and discussed matters together. [Head of the KhAD-e-Nezami] added that interrogating prisoners was not one of the defendant's duties. Finally, he stated that the defendant may well have visited interrogation rooms by way of supervision, but that he never saw the defendant do so and never instructed him to do so.

ii. The witness [head of the investigation and interrogation division of the KhAD-e-Nezami]

151. In the case against the defendant, the witness [head of the investigation and interrogation division of the KhAD-e-Nezami] made a detailed statement to the examining magistrate on 10 and 11 March 2008. He stated that [head of the KhAD-e-Nezami], the Rais, was his immediate superior within the KhAD-e-Nezami and that he was accountable to him when it came to interrogating prisoners and the progress of investigations. The Rais had the authority to attend interrogations. He also stated that the defendant, whom he had known since 27 December 1979 when the latter came to work at the KhAD-e-Nezami, was the second deputy of [head of the KhAD-e-Nezami]. He further stated that all the deputies were higher up than himself. Regarding the job description of the second deputy, [head of the investigation and interrogation division of the KhAD-e-Nezami] stated that the division of labour between the deputies was determined by the Rais [head of the KhAD-e-Nezami], whereby the first deputy had more powers than the others. If [head of the KhAD-e-Nezami] was not present, the first deputy replaced him. If the latter too was absent, the Rais would assign a deputy in his absence. If the Rais was not there, the first deputy could issue him ([head of the investigation and interrogation division of the KhAD-e-Nezami]) with instructions or assign a task to him. This was because he was the deputy of the Rais. If the deputy issued him with official instructions, he was obliged to follow them.

The deputy had the power to instruct him to investigate or to call a halt to torture, according to the witness. The witness described the defendant as a deputy with good qualities.

iii. The witness [witness 10]

152. The witness [witness 10] stated to the examining magistrate on 31 January 2008 that in the period to which the charges relate he was working at the KhAD-e-Nezami, inter alia as an assistant in the investigation and interrogation division. He also stated that [head of the KhAD-e-Nezami] was appointed as director in 1983 and that the defendant had been his second deputy from 1983 or 1984 to 1986 or 1987. He also noted that there was a hierarchy between the deputies within the KhAD-e-Nezami. Where military matters were concerned, the defendant was entitled to give orders to [head of the investigation and interrogation division of the KhAD-e-Nezami] because he was one position higher in rank. He also stated that the defendant could concern himself with interrogations in response to instructions from the director or following consultations with an advisor or public prosecutor. Finally, [witness 10] stated that he had seen the defendant entering the office of his Modir [head of the investigation and interrogation division of the KhAD-e-Nezami], sometimes once or twice a week.

iv. The witness [witness 11]

153. The witness [witness 11], who worked as a public prosecutor in Afghanistan between 1980 and 1985 and was responsible for enforcing the law, stated to the examining magistrate on 6 February 2007 that in the first year of his appointment he had monitored the KhAD. During this first year, the defendant was appointed deputy director of the KhAD-e-Nezami. He also stated that [head of the KhAD-e-Nezami] was the director, that the defendant was higher in rank than [head of the investigation and interrogation division of the KhAD-e-Nezami], that [head of the investigation and interrogation division of the KhAD-e-Nezami] was the head of the interrogation division and that this division operated under the defendant's authority. The Court of Appeal notes that this latter observation is not corroborated by any other piece of evidence.

v. The witness [witness 12]

154. In his statement of 7 May 2007 to the examining magistrate, the witness [witness 12], who, according to his statement, was responsible for monitoring the investigative bodies of the state security service, including the KhAD-e-Nezami, stated that he knew the defendant and that the latter was legally entitled to attend interrogations conducted by the investigation and interrogation division. He also stated that [head of the investigation and interrogation division of the KhAD-e-Nezami] was the head of that division.

vi. The witness [witness 13]

155. The witness [witness 13] made a statement to the police on 6 September 2006. In this statement, he stated that he himself was Modir at the KhAD-e-Nezami and that the defendant was a deputy at the KhAD-e-Nezami. He also stated that the head of the KhAD-e-Nezami, his deputy and the head of the interrogation division met in tripartite consultations to coordinate the case and the evidence against individuals who were making propaganda and hence discouraging the personnel of the unit. They also discussed the measures to be taken, such as the arrest of the person in question. [Witness 13] further stated that the deputies were legally obliged to sign arrest warrants if [head of the KhAD-e-Nezami] was not there, and that the deputies and the head of the interrogation division worked together closely. The head of the interrogation division notified the head of the KhAD-e-Nezami and his deputy of the progress made during the interrogation of a prisoner. [Witness 13] subsequently confirmed the statement he had made, through the mediation of an interpreter, and signed it. After this, [witness 13] was questioned by the examining magistrate on 7 February 2008. The examining magistrate terminated this examination prematurely because he did not consider the witness mentally fit to make a statement. This means that the defence too no longer had the opportunity to question or have questions put to this witness and in this way to exercise the rights of defence. Since the relevant passages of the previous statement made by [witness 13] are corroborated by the other witness statements cited here, the Court of Appeal holds that his statement can nonetheless be used in evidence.

vii. The witness [witness 14]

156. In relation to the statement made by [witness 14], which is cited in this connection by the public prosecution service, the Court of Appeal would note as follows. The witness [witness 14] was examined by the police on 20 May 2008 and by the examining magistrate on 26 and 27 July 2008. He stated that he had succeeded [head of the KhAD-e-Nezami] as director of the KhAD-e-Nezami in the period from 1370 to 1371 [the Court of Appeal understands this to mean 1991-1992]. [Witness 14] made a detailed statement to the police regarding the defendant's position and responsibilities as the first deputy.

[Witness 14] stated before the examining magistrate that in his earlier interview with the Dutch police he had been mistaken in the defendant's position, and that contrary to his earlier statement, the defendant was the second deputy of the director of the KhAD-e-Nezami. [Witness 14] further stated that he had not worked at the KhAD-e-Nezami in Kabul at the same time as the defendant. While the defendant was working at the KhAD-e-Nezami, [witness 14] worked outside Kabul, and by the time [witness 14] became director of the KhAD-e-Nezami in Kabul, the defendant had already left. When asked to specify the duties attached to the position of second deputy, [witness 14] stated that he could not specify these precisely. In view of the substance of the latter statement, and the fact that the witness's first statement, inasmuch as it concerned the defendant's duties as first deputy, is not corroborated by any other evidence, the Court of Appeal will disregard this part of his first statement.

157. The above statements, taken together, lead the Court of Appeal to conclude as follows. The Court of Appeal notes that the witness [head of the KhAD-e-Nezami] broadly confirms the defendant's own account of his responsibilities. Contrary to the defendant's initial statement in the appeal proceedings, [head of the KhAD-e-Nezami] did not state that these responsibilities meant that the defendant was frequently away from Kabul. For the rest, the witness [head of the KhAD-e-Nezami] shed little light on the defendant's tasks and responsibilities and hence on the true relationship between the defendant and the head of the interrogation and investigation division of the KhAD-e-Nezami, although on the other hand he was unable to rule out the possibility that the defendant had visited interrogation rooms in a supervisory capacity, which might imply that this was one of his tasks. The latter also follows more explicitly from the statement of [witness 10], to the effect inter alia that the militarily higher-ranking defendant could issue commands to the head of the interrogation division and concern himself with the interrogations. The most explicit remarks were made, however, by the head of the investigation and interrogation division himself, according to whom the defendant, as deputy, was above him in the hierarchy, and an official command issued by the deputy had to be obeyed by him, [head of the investigation and interrogation division of the KhAD-e-Nezami]. This statement is also corroborated by the statements of [witness 11], who asserted that the investigation and interrogation division operated under the defendant's authority, and that of [witness 12], according to whom the defendant was legally entitled to attend interrogations by virtue of his position, and mutatis mutandis that of [witness 13], who stated that the head of the KhAD-e-Nezami, his deputy and the head of the interrogation division held tripartite consultations and that the deputies and the head of the interrogation division cooperated closely together.

158. As employees of, and hence subordinates of [head of the investigation and interrogation division of the KhAD-e-Nezami], inasmuch as these persons committed violations of international humanitarian law, the following persons have been named more specifically by various witnesses. [Victim 1] referred in his aforementioned statement in the case LJN RL5051 to [interrogator 1] as one of the interrogators who kicked and beat him.

[Witness 4] stated to the examining magistrate on 28 February 2007, and before that to the police on 3 February 2005 in case LJN RL5051 that he had been injured during interrogation at the KhAD-e-Nezami by the actions of one [interrogator 5]. [Witness 15] also named [interrogator 5] to the examining magistrate as one of his interrogators, besides which he also named [interrogator 6], [interrogator 7], [interrogator 8], [interrogator 2] and [witness 16] as interrogators. [Witness 16], according to his own statement to the police on 10 October 2006 worked at the KhAD-e-Nezami in the period between 1981 and 1991, initially as secretary to the youth organisation and later as head of the propaganda department. Other witnesses, including [head of the investigation and interrogation division of the KhAD-e-Nezami] - in his statement of 7 December 2004 - state that [witness 16] was one of the interrogators working under the authority of [head of the investigation and interrogation division of the KhAD-e-Nezami].

The latter statement is corroborated by the statement of [witness 17] to the police on 25 May 2006, to the effect that he had been beaten and kicked by [witness 16] after his arrest on 26 Ghaus 1364 [the Court of Appeal understands this to mean 17 December 1985]. The witness [witness 18] also names a certain [interrogator 10] in his statement to the police on 7 July 2006.

160. The next question to be considered is whether the defendant exercised 'effective control' over the subordinates who committed the criminal offences in the indictment.49 Taking into account the remarks that have been devoted to this subject thus far, the Court of Appeal considers the following questions relevant to determining whether the defendant exercised effective control:50

161. The Court of Appeal would emphasise that the existence of effective control can only be assessed in the context of the times at which the criminal offences were committed. For 'effective control' must have existed at the time of the criminal offences committed by the subordinates,51 which in this case means - given the period of detention specified by [victim 1] and [victim 2] - in the period from 1 December 1985 to 1 June 1986.

162. When examined as a witness in case RL 5051 against [head of the KhAD-e-Nezami] and [head of the investigation and interrogation division of the KhAD-e-Nezami] on 8 September 2005, the defendant stated to the examining magistrate that although he had an office in the same building as [head of the investigation and interrogation division of the KhAD-e-Nezami], he had no substantive contact with him.

In the proceedings at first instance and on appeal, the defendant stated that there was no formal relationship between [head of the investigation and interrogation division of the KhAD-e-Nezami] and himself, that the duties of [head of the investigation and interrogation division of the KhAD-e-Nezami] were not his responsibility, and that it was not his (i.e. the defendant's) task to keep an eye on him.

163. That the defendant had the authority to supervise [head of the investigation and interrogation division of the KhAD-e-Nezami], as the District Court also established, can be inferred, in the Court of Appeal's view, from the above-mentioned witness statements. Regarding the question of effective control, the Court of Appeal considers the statements made by the following witnesses, the appropriate parts of which are summarised here, to be relevant.

i. The witness [head of the investigation and interrogation division of the KhAD-e-Nezami]

164. In the aforementioned questioning by the examining magistrate on 10 and 11 March 2008, the witness [head of the investigation and interrogation division of the KhAD-e-Nezami] stated that he had dealings with the defendant in the course of his work. He stated that the defendant, as deputy head, was above him, and that all letters to other bodies were signed by the Rais [the Court of Appeal understands this to mean 'head of the KhAD-e-Nezami] or his deputies. If the Rais was not there, the deputy was authorised to give him instructions or assign him a task. If problems arose, he sought the deputy's advice. He also stated that the deputy had the power to instruct him to investigate or halt acts of torture. On the other hand, [head of the investigation and interrogation division of the KhAD-e-Nezami] said nothing to indicate that he ever received any instructions from the defendant in the course of his work as head of the investigation and interrogation division, which is a contraindication for the existence of effective control.52

ii. The witness [witness 13]

165. On 6 September 2006, [witness 13] stated, as already noted, that the head of the KhAD-e-Nezami, his deputy and the head of the interrogation division met in tripartite consultations to coordinate the case and evidence against individuals who were making propaganda and hence discouraging the personnel of the unit. They also discussed the measures to be taken, such as the arrest of the person in question. [Witness 13] further stated that the deputies were legally obliged to sign arrest warrants if [head of the KhAD-e-Nezami] was not there, and that the deputies and the head of the interrogation division worked together closely. According to [witness 13], it was not the case that the deputies had nothing to do when the head of the KhAD-e-Nezami was away.

The head of the interrogation division kept the head of the KhAD-e-Nezami and his deputy informed of the progress being made in the interrogation of a prisoner. It was possible that the head of the KhAD-e-Nezami and his deputies might attend a prisoner's interrogation. The witness stated that he did not know whether the head of the KhAD-e-Nezami actually supervised the conditions in which the prisoners were detained there.

iii. The witness [witness 15]

166. That the defendant, based on his position as one of the deputies of the head of the KhAD-e-Nezami, also had the task of supervising [head of the investigation and interrogation division of the KhAD-e-Nezami] can be inferred from the statements made before the examining magistrate by [witness 15], who, according to his statement, worked at the KhAD-e-Nezami in Kabul between 1359 (1980) and 24 Jawza 1364 (14 June 1985). This witness stated before the examining magistrate on 27 February 2007 that the defendant was the superior of [head of the investigation and interrogation division of the KhAD-e-Nezami] and gave him instructions, and that the defendant supervised interrogations in which people were tortured. It appears from his statement that this witness is referring in particular to the defendant's role in interrogating ten prisoners who had been arrested in connection with the bombing of the airport in 1363 (1984/1985). Contrary to his statement of 2 June 2005 to the police in case LJN RL5051, in which he stated that [head of the KhAD-e-Nezami] and [head of the investigation and interrogation division of the KhAD-e-Nezami] were responsible for these interrogations, in the above-mentioned examination before the examining magistrate, [witness 15] stated that the defendant was in charge of them.

iv. The witness [witness 10]

167. This statement is corroborated by that of the aforementioned witness [witness 10] on 31 January 2008 to the examining magistrate, to the effect that the defendant could possibly concern himself with interrogations if instructed by the director or following consultations with an advisor or public prosecutor. Finally, [witness 10] stated that he had seen the defendant entering the office of his Modir [head of the investigation and interrogation division of the KhAD-e-Nezami], sometimes once or twice a week. He also recalled more specifically the events surrounding an air raid in Kabul in 1983 that had claimed a large number of victims.

In relation to the events following that air raid, such as the arrest and transfer of defendants to the investigation and interrogation Moderiat, he stated that the deputies had played a role in this case. He stated that he had himself worked in the building of the investigation and interrogation Moderiat at the time, and that he had seen the defendant, whose office was next to that of the head of the investigation and interrogation division, entering the latter's office. Ten or eleven interrogators were present in addition to other members of staff.

v. The witness [witness 11]

168. In relation to the defendant's supervision of [head of the investigation and interrogation division of the KhAD-e-Nezami], the aforementioned witness [witness 11] stated to the examining magistrate on 6 February 2007 that the defendant had been appointed deputy director of the KhAD-e-Nezami with the task of keeping an eye on the Khalqis, including [head of the investigation and interrogation division of the KhAD-e-Nezami].

169. In the trial proceedings at first instance and on appeal, the defendant confirmed that he was the only one of the deputies to have his office in the same building within the KhAD-e-Nezami complex as the head of the investigation and interrogation division; these offices were on the same corridor. The latter was also confirmed to the examining magistrate by the defendant's bodyguard, cleaner and chauffeur, [witness 19]. This witness, who worked as the defendant's bodyguard and chauffeur for several months in the period before the defendant's transfer to Kunduz, stated to the examining magistrate on 6 March 2007 that there had been disagreements between the defendant and [head of the investigation and interrogation division of the KhAD-e-Nezami]. The cause of these disagreements, according to this witness, was the fact that the defendant and [head of the investigation and interrogation division of the KhAD-e-Nezami] belonged to different factions. Although they had offices on the same corridor, they did not visit each other, from which it was clear that they were not on good terms, according to this witness.

170. The content of these statements has failed to resolve convincingly the question of whether the defendant's official duties included supervising [head of the investigation and interrogation division of the KhAD-e-Nezami]. After all, the witness [witness 15], who was an employee of division 2 at the time, bases his testimony solely on his observations of events that took place in 1984, almost eighteen months before the events in the indictment relating to [victim 1] and [victim 2]. For the rest, the Court of Appeal finds, as the District Court found, that only the aforementioned witness [witness 15] states that the defendant gave instructions to [head of the investigation and interrogation division of the KhAD-e-Nezami] during interrogations.

171. However, the Court of Appeal will not attach any evidential value to this statement, since it stands alone and apparently relates to events that lie outside the scope of the indictment. The same applies to the testimony of [witness 10], who describes the defendant's specific intervention in relation to an event that took place in 1983. In addition, questions may be raised concerning the value of the statement of [witness 11] regarding the defendant's task of keeping [head of the investigation and interrogation division of the KhAD-e-Nezami] under scrutiny. The task of spying on someone in this way - if indeed the defendant had such a task - does not necessarily imply that the defendant also had the task of keeping [head of the investigation and interrogation division of the KhAD-e-Nezami] under scrutiny regarding matters other than his loyalty, and it certainly does not establish the defendant's 'effective control', as a superior, over the actions of [head of the investigation and interrogation division of the KhAD-e-Nezami] and others before and during the acts in the indictment. It may be added that the defendant drew the court's attention in the proceedings at first instance to the possibility, which the Court of Appeal too believes not implausible, that in the examination of witnesses, which was conducted at all times through the mediation of an interpreter, insufficient attention was paid to the distinction between the 'investigation and interrogation division' and the interrogation rooms.

172. Similarly, the mere fact that the witness [head of the KhAD-e-Nezami] indicated in his aforementioned statement of 7 February 2007 to the examining magistrate that it was possible that the defendant may sometimes have entered the interrogation rooms of the investigation and interrogation division, that the witnesses [witness 11], [witness 12] and [witness 13] have stated that the defendant's position entitled him to attend and conduct prisoner interrogations held by staff of the investigation and interrogation division, and that in his statement of 24 May 2006, [witness 6] stated that after his arrest by the KhAD-e-Nezami on 29 October 1364 [Court of Appeal: 1985], he was beaten by the deputy director of the KhAD, one [defendant's forename], cannot lead to the conclusions at issue.

173. The Court of Appeal finds that the case file contains insufficient information to warrant the conclusion that the defendant's position was such as to enable him to make actual changes in the structure of the KhAD-e-Nezami, including halting torture and other crimes against humanity. The same applies to the question of whether the defendant had the power to punish, arrest, dismiss or replace [head of the investigation and interrogation division of the KhAD-e-Nezami] and his interrogators, which too are factors that may be relevant to establishing the existence of 'effective control'.

174. The Court of Appeal has established above that a relationship of authority existed between the defendant - as (second) deputy of the [head of the KhAD-e-Nezami] - and [head of the investigation and interrogation division of the KhAD-e-Nezami] and his staff. As likewise established above by the Court of Appeal, [victim 1] and [victim 2] were victims of acts of violence committed by [head of the investigation and interrogation division of the KhAD-e-Nezami] and his staff in the period to which the charges relate, which acts come within the scope of section 8 of the WOS. No detailed information is available concerning the times at which these events occurred. Nor has any information become available regarding the periods during which, or times at which, the defendant actually exercised, or was expected to exercise, his responsibilities as second deputy of [head of the KhAD-e-Nezami] besides his position as modir of the intelligence division of the KhAD-e-Nezami. No evidence is available that would enable the Court of Appeal to establish with sufficient certainty that the relationship of authority between the defendant and [head of the investigation and interrogation division of the KhAD-e-Nezami] and his staff implied that the defendant could exercise said authority at all times, even if [head of the KhAD-e-Nezami] was present, and/or that it was his task to do so.

175. At the same time, there is a lack of information in this case concerning the defendant's knowledge of the presence on the premises of the aforementioned victims, concerning his knowledge of their interrogations and the times at which they were conducted, and concerning their willingness to take part in the investigation. As noted above, the case file contains indications that torture took place at the KhAD-e-Nezami and that the defendant was aware of this. Given the aforementioned lack of factual information, however, combined with the Court of Appeal's general considerations, above, regarding evidential value and about the relevant witness statements, this general circumstance is insufficient to warrant the firm conclusion that at the time when the offences in the indictment were committed, the defendant was truly in a position to be able to exercise effective control over them. This means that one of the criteria needed to establish that the defendant can be held liable as a superior for the violations of international humanitarian law charged in the indictment is not fulfilled. The Court of Appeal therefore finds that it cannot be proven that the defendant intentionally permitted one or more of his subordinates to commit offences within the meaning of section of 8 of the WOS, and that he must therefore be acquitted of the offences in count 2 of the indictment.

176. In view of this finding, the Court of Appeal will not discuss the defence's argument that the Russian advisors had appreciably disrupted the formal command structure within the KhAD-e-Nezami.

177. This being the case in relation to counts 1 and 2 of the indictment, the Court of Appeal will not assess the elements of 'intent' or recklessness, or any of the other lines of defence and submissions concerning the evidence.

DECISION

The Court of Appeal:

Sets aside the contested judgment and gives the following new judgment.

Finds that it has not been proven legally and convincingly that the defendant committed the criminal offences described in counts 1 and 2 of the indictment and acquits the defendant of these charges.

This judgment was given by

The judgment was pronounced in open court on 16 July 2009.