ECLI:NL:GHSGR:2009:BK8758

TRANSLATION IN ENGLISH OF LJN BJ2796 Case no. 22-004581-07 Prosecution no. 09-750001-06 Date of judgment: 16 July 2009 DEFENDED ACTION The Hague Court of Appeal Full-bench criminal division Judgment Given in the appeal from the judgment of 25 June 2007 by The Hague district court in the criminal proceedings against the defendant: Defendant, Born in [place of birth] (Afghanistan) on [date of birth] 1950, [address] 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(

1. 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, - kicked and/or beat [victim 1] on the shinbone and/or on the body on several occasions, or in any event on one occasion (on each occasion) - kept the above-mentioned [victim 1] awake for days and nights on end and/or - forced the above-mentioned [victim 1] to remain outside for one or more of these days (and nights) during a period of cold weather, and/or - on several occasions, or in any event on one occasion (on each occasion) forcibly held one or more of the fingers of the above-mentioned [victim 1] between a door and the door jamb and then slammed the door shut while the finger or fingers of the above-mentioned [victim 1] were still between the door and the jamb and/or - cut off part of a finger of the above-mentioned [victim 1] without anaesthetic, 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, - on several occasions, or in any event on one occasion (on each occasion) attached one or more electric wires to the toes, or in any event to the body of [victim 2] and (subsequently) administered an electric current to the body of the above-mentioned [victim 2] through said wire(s), and/or - kicked and/or beat [victim 2] on the shinbone and/or on the body on several occasions, or in any event on one occasion (on each occasion) 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, - kicked and/or beat [victim 1] on the shinbone and/or about the body on several occasions, or in any event on one occasion (on each occasion) - kept the above-mentioned [victim 1] awake for days and nights on end and/or forced the above-mentioned [victim 1] to remain outside for one or more of these days (and nights) during a period of cold weather, and/or - on several occasions, or in any event on one occasion (on each occasion) forcibly held one or more of the fingers of the above-mentioned [victim 1] between a door and the door jamb and then slammed the door shut while the finger or fingers of the above-mentioned [victim 1] were still between the door and the jamb and/or - cut off part of a finger of the above-mentioned [victim 1] without anaesthetic, 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, - on several occasions, or in any event on one occasion (on each occasion) attached one or more electric wires to the toes, or in any event to the body of [victim 2] and (subsequently) administered an electric current to the body of the above-mentioned [victim 2] through said electric wire(s), and/or - kicked and/or beat [victim 2] on the shinbone and/or about the body on several occasions, or in any event on one occasion (on each occasion) 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, - on several occasions, or in any event on one occasion (on each occasion), kicked and/or beat and/or punched the body of [victim 3], and/or - on several occasions, or in any event on one occasion (on each occasion), kept the said [victim 3] awake for days and nights on end, and/or - on several occasions, or in any event on one occasion (on each occasion) attached one or more electric wires to the toes, or in any event to the body of the abovementioned [victim 3] and (subsequently) administered an electric current to the body of the abovementioned [victim 3] through said electric wire(s), and/or - on several occasions, or in any event on one occasion (on each occasion) hung the abovementioned [victim 3] by the feet and/or subsequently struck him with (wet) branches, in any event with a (hard) object on his (bare) feet, or in any event on the body of said [victim 3], 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: '1. Any person who violates the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years or a fifth-category fine. 2. A term of imprisonment not exceeding fifteen years or a fifth-category fine shall be imposed in the following circumstances: 1º. if it is feared that the offence may have resulted in the death or serious bodily injury of another person; 2º. if the offence involved inhuman treatment; 3º. if the offence involved forcing another person to do, refrain from doing, or tolerate something; 4º. if the offence involved looting. 3. Life imprisonment, a determinate sentence not exceeding twenty years or a fifth-category fine shall be imposed: 1º. if the offence results in the death or serious bodily injury of another person or involves rape; 2º. if the offence involves the joint commission of acts of violence against one or more persons or the use of violence against a dead, sick or injured person; 3º. if the offence involves the joint commission of the destruction, damage, rendering unusable or removal of any property that belongs wholly or in part to another person; 4º. if the offence referred to in 3º of 4º of the previous subsection was committed jointly with one or more others; 5º. If the offence is an expression of a policy of systematic terror or unlawful action against the entire population or a particular section of the population; 6º. if the offence involves a violation of a pledge, or a violation of an agreement concluded as such with the opposing party; 7º. if the offence involves the abuse of a flag or symbol or of the military insignia or uniform of the opposing party that is protected by the laws and customs of war.' 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). - The prosecution of the defendant on count 2 of the indictment is incompatible with the principle of nulla poena sine lege, since it breaches the provisions of article 7 of the European Convention on Human Rights (ECHR) as well as those of article 15 of the International Covenant on Civil and Political Rights (ICCPR) and the requirements of foreseeability and accessibility arising from these articles. - The alleged breaches of sections 8 and 9 of the WOS in this case are cumulative and the charges are not alternative. But a choice must be made: either the prosecution service opts for the variant of perpetration (or joint perpetration) or it must opt for the 'command responsibility' construction. - There is no right of prosecution in regard to the defendant, because an amnesty law has been passed in Afghanistan for crimes committed during the diverse hostilities and armed conflicts of the past 25 years. 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
2. 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: 'Article 1. The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates;' 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 The US Supreme Court eventually reached the conclusion that there had been: 'An unlawful breach of duty (of General Yamashita) as an army commander to control the operations of members of his command by permitting them to commit [the] extensive and widespread atrocities ...'. 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. 3. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. ... Article 147 enumerates the 'grave breaches' as referred to in the previous article. The relevant passage of this article reads as follows: '... 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: 1. a relationship of authority must exist between the superior and his subordinate; 2. the superior must have known, or should have been capable of concluding (on the basis of information received) that his subordinates had committed, or were about to commit, a breach of the Geneva Conventions and this Protocol; 3. the superior took no steps to prevent these breaches. 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: 'In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: