Commission on Crime Prevention and Criminal Justice (CCPCJ)

Toespraak | 22-04-2013

Ladies and gentlemen,

Let me start by welcoming you all to today’s side event.

I am very pleased to see so many of you here today. I have already spoken to a number of representatives about the resolution tabled by Argentina and co-sponsored by the Netherlands, Austria, Belgium, Chile, Cyprus, Estonia, Georgia, Hungary, Luxembourg, Norway, Peru, Poland, Romania and Slovenia. This matter is especially important to me as I am a former public prosecutor dealing with international crimes.

We can discuss at length whether and in which cases the legal adage aut dedere aut judicare – which means: extradite or prosecute – applies. However, we can also decide to act by looking at the practical scope for investigating and prosecuting the crime of genocide, crimes against humanity and war crimes, and how the available tools and existing framework could be improved. We do this not because we have an obligation to do so but because tolerating individuals suspected of committing these crimes on our territory undermines the rule of law, both in our own countries and in the wider world. This – in short – is what the Netherlands has been doing for the past decade, using all the means we have at our disposal.

At the end of the 1990s, there was a public outcry in the Netherlands when the press reported on war victims who had encountered one of their torturers in a Dutch market place. Pioneers from the Public Prosecution Service boldly started to investigate individuals suspected of international crimes who were living in the Netherlands and thought they had found a safe haven. These pioneers of international justice in a national setting explored ways to bring these suspects before a Dutch court. I was personally involved in a number of these cases.

Under international law, dealing with suspected perpetrators of genocide, crimes against humanity and war crimes remains the primary responsibility of states. International criminal justice is therefore the primary responsibility of states. Or if I may paraphrase: justice begins at home. With this realisation comes the acknowledgment that delivering justice at home is impossible unless states assist one another.

This brings me back to the Netherlands’ experience in the investigation, prosecution and adjudication of international crimes. The Netherlands considers it vital that those suspected of serious international crimes are brought to justice. These cases should preferably be investigated and prosecuted by the state within whose jurisdiction the offences were committed. However, if this is impossible, the Netherlands is willing to take on this responsibility if the suspects in question are on Dutch territory.

Special teams at the Dutch Public Prosecution Service and the National Bureau of Criminal Investigation have investigated and prosecuted suspects of serious crimes who fall within Dutch jurisdiction, and they continue to do so: not only suspects from other countries who currently reside in the Netherlands but also Dutch nationals. Take the case of the Dutch businessman, Mr. Van Anraat, who was convicted of complicity in war crimes. He had sold chemicals which were essential elements in the production of mustard gas to the authorities of a state that used gas in attacks on its own citizens. In this case, vital evidence had to be gathered in many countries, and we faced numerous difficulties in order to achieve this.

In our opinion, the successful investigation, prosecution and adjudication of the crime of genocide, crimes against humanity and war crimes at national level depends on technical assistance and the exchange of best practices. But that is not all. They also depend on mutual legal assistance in criminal matters and extradition. Because it is in the nature of these crimes that witnesses and perpetrators do not necessarily remain in the country in which the crimes were committed. In the Netherlands, for instance, much (if not most) of the evidence in our case against Van Anraat was to be found outside the Netherlands.

It is also in the nature of these crimes that evidence or assets can be located outside the territory of the state that is conducting the investigation and/or prosecution. All of the national cases the Netherlands has tried in the past few years involved extensive mutual legal assistance in criminal matters with states we had never worked with previously. Countries like Rwanda, Afghanistan, Liberia, Sierra Leone and Japan. But this can be very difficult with the current legal options we have. Our prosecutors and investigators have thus gained considerable experience in cooperating with the judicial and police authorities of a number of states.

(In some situations, like in Rwanda, the Netherlands works extensively with our counterparts to find solutions to operational challenges. But in order to be more effective and efficient, this case-by-case approach has to change.)

The Netherlands also receives requests from other governments to work with them in ongoing criminal investigations. Experience shows that for many specific forms of mutual legal assistance, a treaty is not only useful but also necessary. This applies especially to modern investigative measures like the tracing and freezing of assets, search and seizure, telephone taps and hearing witness testimony by video link.

Over the years, having extensively explored the possibilities within the existing national and international legal framework, we have begun to ask ourselves whether we have the best tools at hand to obtain the evidence where it is to be found.

In general, the international legal framework for extradition and mutual legal assistance with regard to the most serious international crimes seems underdeveloped.

This is why the Netherlands, Belgium and Slovenia are co-hosting this side event and co-sponsoring the resolution tabled by Argentina for this CCPCJ. The legal gap in international cooperation on domestic prosecution of the most serious international crimes is technical in nature: it concerns mutual legal assistance and extradition.

We feel that as an expert body the CCPCJ provides the relevant framework to address such matters of procedural law, as noted in the Salvador Declaration of 2010.

And you as experts have the expertise to develop an efficient framework. Together we can improve international cooperation on this crucial issue.

I trust we will have a fruitful discussion today and I look forward to working with you all in taking the discussion a step further. What’s more, I welcome your ideas and your support for our resolution.

Thank you.