THE HAGUE DISTRICT COURT Criminal law Full chamber in charge of hearing cases concerning international crimes Case/file no.: 09/748011-12 Date of judgement: 14 April 2022 Judgement in a defended actio

article 8 of the WOS. This article states the following: 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: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Article 3, under 4°, of the WOS.

Article 5, second paragraph, of the Dutch Criminal Code (Wetboek van Strafrecht - hereinafter: Criminal Code), as it read at the time of the indictment, provides that prosecution may also take place if the defendant only became a Dutch citizen after committing the offence. The court understands from the history of the creation of the WOS that Article 3 of the WOS must be read in conjunction with the provisions on jurisdiction in the Criminal Code. In view of the provisions of Article 5 of the Criminal Code, the court reads 'the Dutchman'

Article 3

of the WOS as such that this may also include a defendant who only became a Dutch citizen after the fact. This means that jurisdiction in this case can be determined on the basis of the active personality principle. Now that the WOS does not require that there must be double criminality, i.e. that the offences charged are also punishable under the law of the country where they were allegedly committed, the unlimited active personality principle is applicable. Admissibility defences The defence has taken the position that the Public Prosecutor is inadmissible in the prosecution of the defendant, because it was not foreseeable for [name], in view of his education and background, that he would eligible for prosecution in the Netherlands as a civilian superior for the offences as charged, if proven. The court considers that the assessment of these defences requires a judicial finding of fact. This means that these defences do not relate to the admissibility of the Public Prosecutor, but are of a material nature and – if they succeed – lead to the dismissal of all legal proceedings against the defendant. The court will therefore discuss these defences after the finding of fact, in chapter

1. Since there are no further impediments for prosecution as far as the court is concerned, it declares the Public Prosecutor admissible in prosecuting the defendant. 8Historical context Before the court arrives at the actual finding of fact, a brief outline of the political, administrative and social developments in Afghanistan in the run-up to and at the time of the period referred to in the indictment (hereinafter: the indicted period) will be shown below. On 17 July 1973, Lieutenant General Mohammad Daoud staged a coup that ended the 40-year reign of King Zahir Shah. Daoud initially received support from the communist party, the People's Democratic Party of Afghanistan (hereinafter PDPA) which consisted of two factions: the Khalq faction, led by Nur Muhammad Taraki, and the Parcham faction, led by Babrak Karmal. Both factions propagated the communist ideology. The arrest of a number of communist activists in April 1978 triggered the so-called "Saur" revolution on 27 April 1978 by the PDPA. Daoud was overthrown and assassinated and Taraki and Karmal formed a government with Taraki appointed President and Prime Minister and Karmal and Hafiz Allah Amin both deputy prime ministers. In September 1979, Taraki was in turn deposed by Amin and killed. In December 1979 the Soviet Union invaded Afghanistan, Amin was also murdered and Karmal took power. Karmal was appointed President, Prime Minister, Chairman of the Revolutionary Council, among others. In 1986 Mohammed Najibullah became President of Afghanistan until
2. Najibullah announced a reconciliation policy in January
3. In the period after 1986, the Soviet Union withdrew troops from Afghanistan. Armed uprisings against the succeeding regimes broke out in various places in Afghanistan from
4. Under Karmal, the violence intensified. People who resisted the regime were detained and large-scale executions took place. Millions of Afghans fled their country in the period 1978-
5. One of the groups, called 'Mujahedin', put up an armed resistance against the invasion and the regime. The Mujahedin aimed to defend Islam against what they saw as unbelieving Marxists. Within the Mujahedin were several religious and ideological groups. The Mujahedin were supported by the United States and Pakistan, among others. The security agency called KhAD (Khadimat-e Atal'at-e Dowlati) was established in 1980 and headed by the aforementioned Najibullah. Until 1986, the KhAD was part of President Karmal's office and was tasked with ensuring internal security in Afghanistan and the continued existence of the regime. In 1986 the KhAD became a separate ministry and its name was changed to WAD (Wazarat-e Amaniat-e Dowlati). Opponents of the regime who were arrested by the KhAD were often first taken to the KhAD's detention and interrogation centres in Kabul, called Shashdarak and Sedarat. After a few months, these political prisoners were transferred to the Pul-e-Charkhi prison just outside Kabul, which prison also had separate sections, also called blocks, for political prisoners. The United Nations Special Rapporteur on the Human Rights Situation reported in 1985 on large-scale arbitrary arrests of people who opposed the reforms; possibly around 50,000 political prisoners were detained. 9Establishment of the facts: general considerations The defence has argued that the witness statements cannot be used for evidence in view of the passage of time, because of the contacts between witnesses, because they have read books about the situation in the Pul-e-Charkhi prison, and because the questioning of the interrogators has been careless. The defence has also argued that the reports in the file cannot be used for evidence, because they are based on anonymous sources. Finally, the defence argued that the statements of the witnesses always stand on their own, while several pieces of evidence are required for the indictment to be proven. In general, the court notes that the mere passage of time does not mean that the statements of the witnesses are by definition unreliable. The circumstances that some witnesses have had contact with each other and may have read books about the Pul-e-Charkhi prison, cannot in themselves lead to the conclusion that the statements are simply unreliable. In this case, the court has carefully assessed and valued the witness statements, and only used them if and insofar as they found confirmation on essential elements in other evidence, such as other witness statements or reports. The court has no reason to doubt the correctness and reliability of the witness statements insofar as it has used them as evidence, now that these statements – viewed together and in (time) relation to each other and the other evidence – are essentially consistent. With regard to the reports in the file, the court notes the following. These include reports from the Special Rapporteur of the United Nations Commission on Human Rights and reports from non-governmental organisations (NGOs) such as Amnesty International and Helsinki Watch. In addition, a so-called context report titled "Afghanistan Context Report (1978 - 1992) " is included in the file, which was prepared by officials of the National Police and the Public Prosecution Service, based on public sources such as reports from NGOs, reports from the Special Rapporteur and official messages of the Ministry of Foreign Affairs. The court has no reason to doubt the reliability of the reports used for evidence, because these reports are a written representation of research conducted by independent organisations and reporters in Afghanistan at the time. The fact that the reporters relied in part on anonymous sources does not mean that the reports cannot be used as evidence. Contrary to what the defence argues, the reports cannot be regarded as written documents 'containing the statement of a person whose identity is not proven',

Article 344a, paragraph 3, of the Criminal Code.

After all, the identity of the authors of the reports is known. The defence also noted that the reports may refer to statements by witnesses who also testified in this case. The court considers that although this cannot be ruled out, the reports contain reports from a large number of witnesses, and there are no concrete indications that the witnesses in this case also made a substantial contribution to these reports. With regard to the required minimum evidence, the court considers in general as follows. Pursuant to Article 342, second paragraph, of the Criminal Code – which, contrary to what the defence has argued, concerns the indictment in its entirety and not just a part of it – the court may accept that the evidence that a defendant has committed an offence charged against him cannot be assumed solely on the testimony of one witness. This provision serves to guarantee the validity of the evidence. The statement must be sufficiently supported by other evidence and the link between the witness statement and the other evidence used must not be too distant. 10Establishment of the facts: The existence and nature of the conflict The court is first faced with the question whether it can be established that in Afghanistan, as one of the contracting parties to the Geneva Conventions, there was a non-international armed conflict within the meaning of international humanitarian law in the period referred to in the indictment. The International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) has further elaborated the concept of non-international armed conflict and formulated criteria for assessing whether this is the case. According to established case law, there is a non-international armed conflict if there is protracted armed violence and the armed group(s) involved is/are sufficiently organised. Factors that may be important for determining the intensity of the violence include the number, duration and intensity of the confrontations, the amount and type of ammunition fired and the number of internally displaced persons. The following factors are important in determining whether an armed group is sufficiently organized: the circumstance that the group controls a certain area, the ability to give the group access to weapons and other military equipment and the ability to plan, coordinate and conduct military operations, including troop movement and associated logistics. These factors are not limitative but only indicative and a single factor is not decisive. A state is presumed to have armed forces that meet the requirement of organisation. The court infers from the evidence, in particular the context report and the report of the Special Rapporteur on the human rights situation in Afghanistan in 1985, that large numbers of victims were killed on a daily basis during the period referred to in the indictment. The armed violence caused four million Afghans to be displaced. With the arrival of the Soviet Union, hostilities between the Soviet-backed Afghan regime and opposition groups including the Mujahedin increased substantially. Resistance was brutally countered by military intervention. Bombing raids and large-scale infantry operations took place, killing many people. The armed violence thus continued for a long time and confrontations took place where heavy military artillery was used. Thus, in the opinion of the court, one can speak of ongoing armed violence. The opposition groups were different in nature. Some were armed and used violence, others were not. The Mujahedin, among others, offered armed resistance. This group consisted of 150,000 fighters and had 4,000 bases from which they operated. In the various areas they controlled, the base had a prison, there were Sharia judges to hear cases and military actions were often planned. This group of Mujahedin thus had control over territory, and was able to plan and carry out operations. Thus, in the opinion of the court, the required degree of organisation has been met. In view of the above, the court is of the opinion that at the time of the period referred to in the indictment in Afghanistan there was a non-international conflict between the Afghan government troops on the one hand and the Mujahedin who had staged an armed revolt on the other. 11Establishment of the facts: the identity of the defendant First and foremost the question is whether the defendant, who calls himself [name] and is known as such in the Netherlands, was called [name] during the period referred to in the indictment in Afghanistan and worked in the Pul-e-Charkhi prison. The court infers the following from the evidence. The defendant reported to the IND as an asylum seeker in 2001 under the name [name] and stated that he had fled overland from Afghanistan to the Netherlands. The defendant further stated that he was from the [city] region of Afghanistan and lived in the [name] district of Kabul. The defendant was unable to submit a passport to the IND, but was able to submit a so-called 'taskara', an Afghan identity document in the name of [name]. This taskara was found by the police in 2019 during a search of the home of the daughter of the defendant, named [name]. The taskara has been investigated by the police and that investigation shows that the last name mentioned on pages 3 and 6 has been changed with a blue pen from [name] to [name]. During the search of the defendant's home, an Afghan driving licence of the defendant was found in the name of [name], son of [name], with a passport photo. The defendant has stated to the police that this driving licence belongs to him and that it is his photo. Telephone conversations recorded and intercepted by the police show that the defendant's wife calls him [name] and that the defendant also calls himself [name] on the phone when Afghan-speaking people call him. Also, in a confidential conversation recorded and overheard by the police between the defendant and his son [name], the defendant answered his son's question whether his name was [name] in Afghanistan in the affirmative. The photo on the driving licence was shown to the witness [person 16] who stated that he believed that the photo shows [name], who worked in the Pul-e-Charkhi prison. Witness [person 21] stated that [name], head of politics of the Pul-e-Charkhi prison, came from [place] and that the orchards of both their families were adjacent. This fact is consistent with the statement of the defendant to the police that he is from [place] and that his family had an orchard. Witness [person 22] also stated that he knew [name] from the Pul-e-Charkhi prison, that he came from [place] and that he lived in the district [name] just like the defendant. This also corresponds to what the defendant has stated himself. Finally, the witness stated that he met [name] of the Pul-e-Charkhi prison in the Netherlands at a wedding. On the basis of the foregoing, the court established that the defendant, although also known in the Netherlands under the name [name], was known in Afghanistan as [name] and worked under that name in the Pul-e-Charkhi prison. Now that the file offers leads for the possibility that [name] was dismissed somewhere in the period 1988-1989, the court assumes for the sake of certainty that [name] was no longer working in the Pul-e-Charkhi prison from 1 January 1988 onwards. It follows from the foregoing that the court does not agree with the defence's argument that there is a mistaken identity. To substantiate this statement, the defence has submitted a passport of an Afghan person, not being the defendant, who claims to be [name] and to have worked in the Pul-e-Charkhi prison at the time. However, the Afghan authorities informed in October 2020 about this passport that it is not officially registered and that it is labelled as counterfeit by the authorities. The defence also submitted a video in which a man, not being the defendant, can be seen who declares that he is [name], who was working in the Pul-e-Charkhi prison at the time. The court attaches no value to this video, in view of all the foregoing findings. Where the name [name] appears below in the judgement, this refers to the defendant. 12. Establishment of the facts: circumstances of detention in the in de Pul-e-Charkhi prison The question that the court will answer under this point is whether the facts have happened

the charges. In order to answer that question, the court took into account the witness statements relating to the period from 1983 to

1. The court disregarded the statements relating to circumstances or events in the period before or after. The witnesses were mainly detained in blocks 1, 2 and
2. The conditions under which the prisoners were detained per block were different. The court will therefore examine the circumstances per block. Block 1 Block 1 held political prisoners, including political opponents, former ministers, a former ambassador, relatives of former President Amin and relatives of former ministers. Prisoners were held here without having been convicted by a court. Some witnesses had never been to a court during their stay in Block
3. Block 1 also held people who had been sentenced to death. Prisoners have been imprisoned in block 1 for several years, sometimes with temporary transfers to blocks 2 and/or
4. The cells in block 1 were relatively small and were divided into an east and a west wing. The cells in the west wing had a toilet in their own corridor, the cells in the east wing had a toilet in the cell. It was allowed to use the toilet with the permission of the guards. Showering was not possible and the water to wash with was cold. Everyone was covered in lice. There was overcrowding in the sense that there were often many more people in the cell than the cell was intended for. For example, witness [person 17] stated that in the east wing there were cells for one person, where five people were placed, and in the west wing there were cells for three people, where 12 people were placed. Witness [person 13] stated that there were so many people in the cell that you literally could not breathe properly. Block 1 was overcrowded according to [person 13]. In some cells no daylight came in because the windows were covered. The defendant was responsible for this, according to witnesses [person 1] and [person 8]. The food was bad. Sometimes there was dirt or sand in the food or even a piece of intestine with faeces in it. There was hardly any room for airing. Several witnesses have stated that they were not allowed to air at all, such as witness [person 11] and witness [person 18]. Others have stated that they were allowed to air, but that this was not daily, such as witness [person 10] and witness [person 2]. The prisoners were not allowed to receive visitors. Life consisted of being in a cell with nothing at all, sometimes for years on end. In addition, prisoners were locked up between political opponents, which felt like psychological torture. They had to share their cell with prisoners who had been sentenced to death. The death row inmates were then taken away and the other inmates were then told that the same would happen to them the following week. Now that people did not know what their fate was, this was experienced as heavy and painful. In some cases this happened for years in a row, as was the case with witnesses [person 10] and [person 2]. There were also spies in the cell. These spies passed information to the officials about things that were not allowed. If a prisoner violated household rules, that prisoner was punished, according to witness [person 17]. Examples of punishments were assault, a long period of no airing or transfer to another cell. In addition, inmates were confronted with violent mistreatment when other abused inmates were returned to their cell. Crying could also be heard from people who were interrogated and tortured in block 1, according to witness [person 2]. Block 2 Block 2 contained political prisoners who had not (yet) been to court. There were also prisoners who had already been sentenced by a court to a prison sentence or to the death penalty. It regularly happened that prisoners after a period in block 1 were transferred to block
5. Some prisoners have been imprisoned in block 2 for several years, sometimes with temporary transfers to blocks 1 and/or
6. The cells of block 2 had bars, just like in a cage. Block 2 mainly consisted of cells containing many people. Witnesses cite numbers ranging from 70 to 500 people per cell. The cells were overcrowded, with the degree of overcrowding varying. Witness [person 11], for example, stated about cells for 60 people, sometimes containing as many as 250 to 300 people. Sometimes there was such a lack of space that the prisoners did not always have the opportunity to sleep continuously, but had to take turns sleeping. They touched each other as they lay on the floor. Witness [person 14] was unable to stretch his legs because he would hit other people in the head. In addition to the larger cells, there were also smaller cells in block 2 and these cells were also overcrowded. For example, there were cells intended for four prisoners, but on some days there were eight or nine prisoners, according to witness [person 18]. There was a shortage of sanitary facilities. Witness [person 12] testified about one toilet for 500 people. Witness [person 14] about four to five toilets for 600 people. The toilets were open so that everyone could hear and see each other. Toilet visits were only possible with permission and at designated times. Witnesses gave varying statements about the number of times they were allowed to go to the toilet per day; one to four times. Because there were a large number of prisoners, they had very little time to go to the bathroom. Witness [person 16] talks about only two minutes at a time. If one felt the need to go earlier than the appointed time, the prisoners had to relieve themselves in something else, for example in a plastic bag, bottle, cardboard box or bucket. According to Afghan culture, it is very humiliating to relieve oneself in public where other people can see or hear it, and this was experienced as such by the inmates. There were also insufficient opportunities to wash, which was due to a lack of water, especially in the summer. Witness [person 16] refers to once every two weeks that prisoners were given the opportunity to wash themselves. But when the water ran out, it ran out. The lack of water was a problem according to witness [person 13]. There was no hygiene. Witness [person 11] stated that even animals in a stable would not be kept in the way that he and his fellow prisoners were kept. There were countless fleas, lice and insects in all the cells. As a result, many people had skin diseases. The food was bad, often insufficient, dirty and cold. Witnesses testified that they found, for example, vermin, mice, pebbles, soil and excrement in the food. The food was labelled as inhumane by witness [person 4]. The poor food caused many inmates to have diarrhoea, which in turn led to problems due to the limited number of toilets. Witness [person 4] stated that people wet their pants when there was a diarrhoea epidemic. When the cell door opened there was a streak of diarrhoea to the toilet. Medical facilities were inadequate. Access to medical care or medicines was very limited. Only if a prisoner was very ill, he had access to the medical clinic in the prison, according to witness [person 17]. There the drugs were very limited and often ineffective. There were no medicines for common diseases such as diarrhoea. Prisoners died due to lack of medical care. For example, witness [person 14] stated that a former student of his died because he was not given any medication. Witness [person 16] stated that many prisoners died of easy, simple diseases. There was no help for them. For example, a cellmate of his died of diabetes. Prisoners were inside all day. Sometimes they were allowed to get fresh air. Witness [person 13] mentioned about fifteen minutes every two days, witness [person 3] testified about one hour a day. Visitors were not allowed, so many prisoners did not see their families for years. For example, witness [person 7] stated that he did not receive any visitors during his seven years of imprisonment. In addition, inspections of the cells took place. It regularly happened that guards, sometimes in the middle of the night and with or without the presence of the defendant, checked the cells. There were also spies in the cell, so-called bashis, who passed on their observations to the officials. Several witnesses have stated that if prisoners had pen or paper against the rules, for example, or complained about the detention conditions, they were mistreated by the prison staff. For example, witness [person 17] stated that you were punished for the least you did. You got beat up. Witness [person 12] stated that prisoners were beaten up during a hunger strike. Other forms of punishment were also applied, such as standing for hours in a cold ventilation shaft without a blanket or extra clothes, limiting the possibility to air out or being placed in an isolation cell for a long time. For example, witness [person 11] was placed in isolation for 15 days after a spy reported about him to the prison management that he had defended the Mujahedin and witness [person 16] was placed in isolation for seven months because he had spoken out about the situation in the prison. Prisoners were confronted with prisoners who had been mistreated or tortured because these prisoners were in a cell among the other prisoners. Political opponents were also placed together. According to [person 14], this created an atmosphere in which no one trusted each other anymore, because they did not know what information would end up with the officials. The court cannot establish that the cells were flooded, as was charged. Witness [person 11] stated to the police that his isolation cell where he had to stay for 15 days as a punishment was flooded, but there are no other witnesses who have testified about the flooding of the cells. Nor can the court establish that the prisoners did not have access to sufficient drinking water. Only witness [person 14] stated specifically about this. Although other witnesses have stated about a lack of water, it is insufficiently clear that this concerns drinking water. Block 3 Once the political prisoners were sentenced to a prison sentence by the court, they were transferred to block 3, among other places. In block 3 there were large cells where sometimes there was overcrowding. If a prisoner spoke out about the detention conditions, he was mistreated. There was a hospital that you could only go to in very exceptional cases. The food was bad and there were regular insects in the rice or in the soup. Conditions were better compared to blocks 1 and 2, according to some witnesses. For example, prisoners had access to a small electric oven, books and a game of chess. There was also a television. It also appears from several witness statements that prisoners in block 3, in contrast to the prisoners in blocks 1 and 2, were allowed to air daily and also receive visitors. Interim conclusion Based on the above, the court establishes that all the facts as charged, with the exception of flooding the cell and not having sufficient drinking water available, took place in the period referred to in the indictment.
7. Establishment of the facts: deprivation of liberty and judicial process of prisoners in the Pul-e-Charkhi prison From the evidence, the court infers that in the Pul-e-Charkhi prison, in the period referred to in the indictment, persons were detained awaiting trial, as well as persons who had been tried and persons who would never be tried. For example, witnesses [person 2] and [person 1] stated that they and members of their family had been detained for years in the Pul-e-Charkhi prison, but had not had a trial. Witness [person 4] also stated that he had not had a trial during his five-year detention. Other witnesses have stated that they did have a trial, but that they had been detained in the Pul-e-Charkhi prison for a long time before that. For example, witnesses [person 3], [person 10] and [person 8] stated that they were only tried after six years of imprisonment and witness [person 14] stated that he was tried after five years. Witness [person 6] stated that he was interrogated and tortured in the years prior to his trial. Witness [person 17] stated that he was interrogated and tortured in the week after his arrest. Several witnesses have stated that they were not informed of the charges against them until shortly before their trial. According to witnesses [person 18] and [person 6] this was only one day before, according to witnesses [person 7] and [person 3] three days before and according to witness [person 19] a week before. Several witnesses have stated that they were given pen and paper in their cells to write their defence themselves. They received no legal assistance. They also could not see their file. Witness [person 13] stated that he wanted to see legal texts with a view to his defence, but that this request was rejected by the defendant. Several witnesses have referred to the court that tried them as the Special Revolutionary Court. Witness [person 18] spoke of the “court of the KhAD”, as distinct from the civil court. Witness [person 13] also spoke of “judges of the KhAD”. According to some witnesses, their trial was very short; witness [person 3] mentioned 20 minutes, witness [person 19] spoke about ten minutes and witness [person 18] said even less than a minute. Witnesses also stated that the judges had little or no interest in what they had to say. For example, witness [person 8] stated that he only got two questions and that he was verbally abused by the judges. Witness [person 19] stated that the judges were eating while he was conducting his defence and that they were indifferent. Witness [person 12] stated that he was beaten up by soldiers in court on the orders of a Public Prosecutor while he was conducting his defence. There was also no legal assistance during the hearing. Several witnesses have stated that they had the idea that the course of justice had been rigged. According to witness [person 19], his conviction had already been established. According to witness [person 17], the trial was just for show. According to witness [person 15] it was a premeditated investigation, because there was no evidence against him. Witness [person 13] stated that through his family he already knew what his sentence would be before his trial. This witness also stated that during his trial statements about torture of prisoners were brushed aside by the court. Witnesses have stated that after their trial they were returned to the Pul-e-Charkhi prison. There they heard their conviction after some time, if they were sentenced to prison. If their verdict involved the death penalty, they did not hear this and sometimes remained in ignorance for years. For example, witness [person 16] stated that he did not know what the verdict was for ten years and that he had constantly waited for his execution. Several witnesses stated that there was no possibility for them to appeal against the judgement. The statements of the witnesses are in line with what is stated about the Special Revolutionary Court in the context report. It states, citing various public sources, that the Special Revolutionary Court was supervised by Soviet advisers and functioned as a branch of the KhAD. At the beginning of 1984, the Special Revolutionary Court had imposed a prison sentence on hundreds of political prisoners and also the death penalty on a number of prisoners. There was no right of appeal and no right of defence. A person was only acquitted if there was a "total and clear innocence of the accused". Normally, lawsuits lasted no more than a few minutes. Sessions were not public. The judges of the Special Revolutionary Court were believed to have been members of the PDPA and in some cases recruited from the KhAD. Opposite to all the above is the statement of witness [person 20], who at the time was working as a judge at the Special Revolutionary Court. His statement on the course of events at the Special Revolutionary Court includes the following. Defendants were sent their files 20 to 30 days before the hearing to prepare their defence. Defendants had the right to an attorney. Some sessions lasted a day, others longer. The judges put questions to the defendant and the prosecutor. The judgement was handed out to the convicts on paper. The pre-trial detention could last a maximum of six months, according to the witness [person 20]. The court establishes that this statement is at odds on almost all points with the statements of many other witnesses and with the information that appears from the context report, as stated above. Moreover, the statement finds no confirmation in any other source. The court therefore sets aside the statement of witness [person 20] as implausible.
8. Establishment of the facts: The defendant's role in the Pul-e-Charkhi prison The court finds that many witnesses who were detained in the period referred to in the indictment in the Pul-e-Charkhi prison have testified about one [name], [name], [name], [name], [name], [name], or [name] who worked in that prison. The court assumes that all witnesses are referring to the defendant, of whom the court has already established that he worked under the name [name of the defendant] in the Pul-e-Charkhi prison. The court takes into account that differences in spelling can be explained by transcription of the Persian alphabet. It appears from the statements of the aforementioned witnesses that the defendant had a managerial position in the Pul-e-Charkhi prison in the period referred to in the indictment. Regarding the exact position and responsibilities of the defendant, statements of witnesses were varied. However, the court considers this understandable in view of the position of the witnesses: as prisoners, they cannot be expected to have had a complete picture of the duties and responsibilities of the prison staff. It is equally understandable that - certainly taking into account the passage of time - they have stated differently about the exact names of the functions of the prison staff. In addition, statements were made by so-called insider witnesses, that is to say: witnesses who were employed in the Pul-e-Charkhi prison at the time or who were otherwise affiliated with the PDPA. By virtue of the position they held at the time, they can be regarded as having a better idea of ​​the defendant's position. The statements of the insider witnesses are in line with those of the other witnesses to the extent that these statements also show that the defendant held a leading position in the prison. The insider witnesses [person 23], [person 24] and [person 22] have unequivocally stated that the defendant in the Pul-e-Charkhi prison was responsible for the political prisoners' ward. This is in line with the statements of the witnesses [person 4] and [person 13]. They stated that the defendant was responsible for blocks 1 and 2 in the prison, while the file shows that political prisoners were in any case detained in these blocks. It could be concluded from the statements of other witnesses that the defendant was also responsible for the ward where non-political prisoners were detained. However, the court cannot establish this with sufficient certainty. However, the court believes that the defendant was in any case responsible for the department for political prisoners. Several witnesses have referred to the defendant as "head of political affairs", although this job title was not used by the insider witnesses. Several witness statements show that at some point the defendant took up another position in addition to his original position, which witnesses referred to as “general commander”. Other witnesses mentioned different job titles. The court is therefore unable to determine what the exact job title of the defendant was. Nor can the court determine what the exact chain of command in the Pul-e-Charkhi prison was like. Whether the commander-in-chief, for example, was a superior to the head of political matters, or vice versa, or whether they stood side by side, has remained unclear. However, the court can establish that the defendant led block commanders, who in turn led guards and soldiers who served in the prison. Reference can be made to the statements of witnesses [person 16], [person 6], [person 11] and [person 10] and the insider witness [person 24]. They all stated that the defendant gave orders to block commanders and/or that the block commanders were subordinate to the defendant. [person 24] also named the head of the kitchen as subordinate to the defendant. Witness [person 14] stated that the employees of the hospital and the canteen were also subordinate to the defendant. It appears from the statements of the witnesses that the subordinates actually followed the orders given to them by the defendant. Multiple witness statements indicate that the defendant was referred to as Lieutenant Colonel, although witnesses have also mentioned other military ranks. It is unclear whether the defendant was wearing a uniform. The defendant was able to give orders to soldiers on duty in the Pul-e-Charkhi prison, but it is unclear whether there was a military structure in the prison. The responsibilities that the defendant had by virtue of his managerial position can be inferred from the statements of both insider witnesses and other witnesses. Although there are some differences between the statements of the witnesses, they also have similarities. For example, insider witness [person 23] stated that the defendant was responsible for the living conditions and supervision of the prisoners. Insider witness [person 24] stated that the defendant was responsible for "all matters concerning the prisoners", such as food, airing and family visits. Insider witness [person 22] stated that the main task of the defendant was to guard the prisoners. Witness [person 4] stated that the responsibilities of the defendant were the safety and order in the prison and the living conditions of the prisoners. Witness [person 16] stated that the defendant had authority with regard to the regime in the prison, such as food and safety, frequency of toilet visits and airing. It can also be deduced from several witness statements, such as those of [person 3], [person 10], [person 13] and insider witness [person 22], that the defendant had the authority to transfer prisoners to other cells or blocks. The court therefore finds that, by virtue of his position, the defendant was in any case responsible for the detention conditions and the order in the prison, including the allocation or transfer of prisoners. How the defendant fulfilled his function can be deduced from the witness statements. Several witnesses have stated that from their cell they saw or spoke to the defendant. According to these witnesses, the defendant regularly walked around the prison and inspected the cells. The defendant also had an actual influence on the detention conditions. Witness [person 2], for example, stated that the situation in the prison changed completely for him when the defendant was put in charge: he was not allowed to go to the toilet as often, or to receive visitors, and to take air as often. Witness [person 4] stated that he was not allowed to air as often under [defendant] and that he was not allowed to go to the toilet as often. This witness also stated that the food got worse under the defendant. According to the witness, the defendant deliberately provided bad food. The witness stated that a fellow prisoner addressed the defendant about the bad food with the words "you can't mix our food with dirty things", whereupon the defendant told this fellow prisoner that he was a traitor and anti-revolutionary. Witnesses [person 8] and [person 14] also stated that the detention conditions were getting worse under the defendant. In particular, [person 14] stated that the quality of the food deteriorated and he had less access to a doctor when the defendant was put in charge. Witnesses [person 2] and [person 8] stated that it was on the defendant's orders that the windows in their cell were covered. The defendant was also involved in violence in the Pul-e-Charkhi prison, according to the statements of several witnesses. Witness [person 6] stated that he saw a fellow prisoner being beaten by a guard on orders of the defendant, because the fellow prisoner had complained about the detention conditions. This witness also stated that the defendant had prisoners mistreated as punishment, for example if pen and paper were found in a cell. This witness further stated that the defendant visited him while he was in the prison hospital, withdrew an IV from his hand and had a guard take him back to his cell. Witness [person 11] stated that he had to report to the defendant, who threatened him with execution and had him locked up in an isolation cell by a block commander for 15 days. This was after a spy in his cell had reported about him to the defendant. This witness also stated that the defendant ordered subordinates to beat him. Witness [person 4] stated that he had seen several times that the defendant ordered subordinates to take away a prisoner, after which he heard on this prisoner’s return that violence had been used against him. In a more general sense, witness [person 16] testified about abuse of prisoners and putting prisoners in the cold as punishment. According to the witness, this was the work of the defendant, who had the authority to do so. The defence has argued that there is insufficient evidence for these incidents of violence, because about each incident only one witness testified. The court does not follow the defence. As has already been considered above, the statutory minimum evidence of Article 342, second paragraph, of the Criminal Code pertains to the indictment as a whole and not to a part thereof. This means that it is not necessary to testify about each individual incident by several witnesses. In addition, the statements of the witnesses do not stand alone, but they reinforce each other. Although the individual witnesses testify about different incidents, these incidents are after all similar, i.e. violence committed against prisoners by or on behalf of the defendant, often as punishment. On the basis of the foregoing, the court establishes that the defendant was not only responsible for the detention conditions and the order in the prison by virtue of his position, but also actively interfered with this. On the one hand, by inspecting the cells and by making decisions regarding, among other things, toilet visits, receiving visitors, airing, food, visiting a doctor and covering windows and on the other, because of his involvement in violence in prison, as described above. It can therefore be established that the defendant knew what happened in the prison. He was also aware of who was being detained in the prison and he knew about the judicial process of the prisoners. He knew that shortly before their trial, prisoners were given a pen and paper to write their defence, but when asked refused to provide law documents. He could also be presumed to have known that no lawyers visited the prison to prepare the prisoners for their trial. 15Establishment of the facts: victims 19 persons were named in the indictment. The court infers from the evidence that 18 of them were detained as political prisoners in the period referred to in the indictment in blocks 1, 2 and/or 3 of the Pul-e-Charkhi prison. Only regarding [person 5] this cannot be established. However, these individuals were not the only political prisoners in those blocks of the Pul-e-Charkhi prison in the period referred to in the indictment. After all, the witnesses also testified about fellow prisoners other than the 18 persons in the indictment and about overcrowding of the cells, stating numbers of 70 to 500 persons per cell. In addition, the reports of the Special Rapporteur also show that more political prisoners were detained in the Pul-e-Charkhi. However, the court cannot determine an exact number, not even approximately. The court did establish that all political prisoners in the Pul-e-Charkhi prison were detained without trial, or while waiting (a long time) for their trial, or after a trial as described above. The court also established that all political prisoners were exposed to the detention conditions described above at some point during their detention, although this was not the case for all to the same extent; for example, not all prisoners are exposed to violence to the same extent. 16Protected persons International humanitarian law aims to protect persons who do not or no longer participate in hostilities. The victims in this case are political prisoners, who were detained in the Pul-e-Charkhi prison. As a result, they no longer took part in the hostilities and enjoyed protection under international humanitarian law. In the court's opinion, the defendant must have been aware of this, given his position as manager of the blocks where the political prisoners were detained. 17Violations of international humanitarian law The court must assess whether the facts and circumstances it established above constitute violations of international humanitarian law. To that end, in this chapter it will first explain what the prohibitions and injunctions relevant to this case entail. For its interpretation and interpretation, the court has taken into account the comments made to the Geneva Conventions of the International Red Cross (hereinafter referred to as: ICRC) as well as the case law of the ad hoc tribunals and the International Criminal Court (hereinafter referred to as: ICC). Humanitarian and humane treatment Inhumane treatment is any treatment of a person that is not in accordance with the fundamental principle of human dignity. The principle of human treatment is a rule of customary international law. Humanitarian or humane treatment, as stated in the ICRC commentary to GC IV of 1958, is also the leitmotif of the Geneva Conventions. The injunction for humane treatment is valid at all times and under all circumstances. Common Article 3 of the Geneva Conventions also begins with the injunction for humanitarian treatment in a non-international armed conflict. Common article 3 of the Geneva Conventions further prohibits various conduct contrary to the injunction of humane treatment, such as killing, maiming, cruel treatment, assault on personal dignity, inhumane and degrading treatment and the imposing and execution of judgements without prior trial. These prohibitions are mandatory and are introduced with the sentence (emphasis added): "To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons". The ICRC noted in its commentary to GC I in 1952 that this coercive wording leaves no room for loopholes or mitigating circumstances. The prohibitions relevant to this case will be discussed in more detail below. Cruel treatment Common Article 3 of the Geneva Conventions includes the prohibition of cruel treatment. This prohibition is a means of ensuring that persons not participating in hostilities are treated humanely under all circumstances. The terms "cruel treatment" and "inhumane treatment" are interchangeable, as the ICTY has considered in several rulings. The ICTY has specified cruel and inhumane treatment as an intentional act or omission that causes serious mental or physical suffering or injury, or constitutes a serious violation of human dignity. In order to assess whether this is the case, all factual circumstances must be taken into account, such as the duration and repetition of the behaviour, the context, the personal circumstances of the victim and the physical, mental and moral effects of the behaviour on the victim. The suffering is not required to be permanent, but the suffering must be real and serious in order to qualify as cruel and inhumane treatment. A special aim is not required. The ICTY has established in several cases that poor detention conditions can be regarded as cruel treatment. Specific acts that could be seen as cruel include lack of adequate medical facilities and inhumane prison living conditions, beating, and attempted murder. Assault on personal dignity Common Article 3 of the Geneva Conventions prohibits the assault on personal dignity, in particular humiliating and degrading treatment of persons not directly participating in the hostilities. The interest protected by this prohibition is the honour and dignity of these persons. The Geneva Conventions and the Additional Protocols do not define what constitutes "assault of personal dignity". In the case law of the ICTY, it has been considered, among other things, that this is an intentional conduct that will generally be regarded as seriously humiliating or degrading treatment or which otherwise constitutes an assault on personal dignity. Objective criteria play a role in the assessment thereof, such as the form, duration, intensity of the violence, whether or not mental suffering is involved, as well as the cultural and/or religious background of the person involved. As a result, behaviour that is, for example, degrading to someone of a certain nationality, culture or religion, while not necessarily to others, also falls within the scope of the notion of assault on personal dignity. The humiliation must be substantial and serious, but it does not have to be permanent. Physical or mental pain is not a requirement. It must be established that the perpetrator had knowledge of the degrading and humiliating consequences of his or her conduct or omission. The act or omission charged may in itself constitute an assault on personal dignity, but may also constitute an assault on personal dignity by assessing the act or omission in the context in which it was committed. Both the prohibition of cruel treatment and the prohibition of assault on personal dignity are part of customary international law. Arbitrary deprivation of liberty A prohibition on arbitrary deprivation of liberty in the context of a non-international armed conflict is not explicitly included in the common article 3 of the Geneva Conventions, but in the opinion of the court can be included in the common law injunction of that article to prevent persons to treat those who do not or no longer participate in the hostilities in an inhumane manner. After all, as has already been considered, inhumane treatment is any treatment of a person that does not correspond to the fundamental principle of human dignity. This fundamental principle has also guided the drafting of human rights treaties such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (hereinafter: ICCPR). Article 9 of those treaties states that no one shall be subject to arbitrary deprivation of liberty. In 1980, the International Court of Justice also considered in the Tehran Hostages case that unlawful deprivation of liberty and subjection to physical restraint under severe conditions is manifestly incompatible with the fundamental principles enshrined in the Universal Declaration of Human Rights. Reference may also be made to the 2005 ICRC study on customary international humanitarian law, which states (rule 99): "It should be noted that common Article 3 of the Geneva Conventions, as well as both Additional Protocols I and II, require that all civilians and persons hors de combat be treated humanely, whereas arbitrary deprivation of liberty is not compatible with this requirement". All countries have rules regarding the required grounds for detention. Of the legislation of seventy countries cited in the ICRC study, a large part provides for a ban on arbitrary deprivation of liberty in both non-international armed conflicts and international armed conflicts. Furthermore, many countries have criminalized arbitrary deprivation of liberty as a war crime in their legislation. The United Nations Human Rights Commission already considered in 1994 that the prohibition of arbitrary deprivation of liberty is part of customary international law and that deviation from these norms is not allowed. In addition, as early as 1952, the ICRC stated in its commentary to Geneva Convention I that the injunction to humane treatment is valid in all circumstances and at all times, and is a minimum guarantee that applies in armed conflict. The court thus has come to the conclusion that the prohibition on arbitrary deprivation of liberty in the period referred to in the indictment belonged to customary international law and is contrary to the injunction on humane treatment. With regard to the content of that prohibition, reference can be made to the aforementioned Article 9 of the ICCPR. This article requires that anyone arrested shall be promptly notified of the reasons for his arrest and the suspicion, and that anyone arrested shall be brought before a judge without delay and be entitled to a trial within a reasonable time and the right to periodic review of the grounds for pre-trial detention. Thus, the grounds for detention and due process should be provided. If one of these minimum requirements is not met, there is arbitrary deprivation of liberty. By definition, deprivation of liberty based on extrajudicial punishment cannot have a valid reason, as such punishment is expressly prohibited by common Article
9. What is meant by this is further elaborated in Article 6, second paragraph, of the Second Additional Protocol to the Geneva Conventions (hereinafter: AP II). Reference is made to: adjudication by a non-independent and non-impartial court; failure to comply with the obligation to inform the defendant of the allegation in a timely manner; not respecting the rights of the defendant and not making resources available for the purpose of his defence; disregarding the right of the defendant to be convicted solely on the basis of individual criminal responsibility; failure to observe the principle of nullum crimen nulla poena sine lege (no crime, no punishment without law) and failure to uphold the prohibition to impose a heavier penalty than the penalty in force at the time the criminal offence was committed; not observing the presumption of innocence; not recognising the right of the defendant to be present at his trial; not recognising the defendant's right to remain silent and not enforcing the prohibition on forced confession; not respecting the right of the defendant to be informed of the legal remedies available to him. Pronouncing and executing extrajudicial judgements Common Article 3

Article 55. of the Criminal Code.

After all, there is then a coherent complex of facts occurring at the same time and place to such an extent that the defendant can essentially be blamed for it, in which the purport of the violated staff provisions is the same. The penalty in that case will be based on the direct involvement of the defendant. In the same context, see, for example, District Court of Dili, Special Panel for Serious Crimes, in the case against Sufa: “Rather, in a first stage, it has to be acknowledged that both types of responsibility exist, and in a second stage it must be decided whether they continue to co-exist or whether one is displaced by the other. In this second stage, the Court took recourse to legal instruments developed in "civil law" jurisdictions to resolve the concurrence: In "civil law" jurisdictions, a person who intentionally participates in the commission of a crime by ordering it, is regarded as a perpetrator of that crime himself, whereas a superior who fails to prevent a crime by his subordinates is not regarded as the perpetrator of that crime but of a separate crime of omission (failure to supervise). In such a case it is an undisputed principle that the separate crime of omission (by negligence) is subsidiary to the (intentionally) ordered crime. This principle also applies to international criminal law”. Co-perpetration With a few exceptions, the general rules of Dutch general criminal law also apply to the trial of war crimes (see Article 91 of the Criminal Code), in particular the rules relating to participation in criminal offences. According to case law of the Supreme Court of the Netherlands, co-perpetration is involved if several persons have cooperated closely and consciously to commit a criminal offence. This requires that the co-perpetrators have intentionally cooperated, that the co-operation was aimed at committing the criminal offence, and that the co-perpetrator's contribution to the offence was sufficiently substantial. Liability as a superior Article 9 of the WOS makes punishable anyone who intentionally allows a subordinate to commit an offence

Article 8of the WOS.

Command responsibility refers to the general obligation of superiors to take measures in an armed conflict to prevent and punish crimes committed by subordinates. Superiors, if they fail in this obligation, can be held criminally liable for failure to prevent and punish crimes by their subordinates. In the legal interpretation of superior liability, the court aligns with the international law concept of command responsibility and considers this as follows. The obligation of superiors to take measures in an armed conflict to prevent and punish crimes committed by subordinates follows from the fundamental principle of international humanitarian law, i.e. responsible command. The principle is contained in the earliest codifications of the laws of war. After the Second World War, the principle of responsible command and the command responsibility ensuing from it developed into a general principle of law within (international) law. Through command responsibility, superiors can be held criminally liable for failure to prevent and punish crimes by their subordinates. Codification of the doctrine of command responsibility took place with the adoption of the AP I in 1977, whereby Articles 86 and 87 of the AP I included both the duties of the commander and the criminal consequences if he does not comply with the duties. The AP II does not contain any codification of the doctrine of command responsibility. However, it is generally accepted that the doctrine also applies in non-international armed conflicts, as the AP II allows states to - in accordance with common Article 3 of the Geneva Conventions - prosecute and try individuals and members of the armed forces who have committed conflict-related (serious) violations of international humanitarian law. Penal provisions regarding the doctrine of command responsibility can be found in Article 7 of the Statute of the ICTY, Article 6 of the Statute of the ICTR and Article 28 of the Rome Statute before the establishment of the ICC. The resulting case law dates from after the period referred to in the indictment. However, the court sees no impediment to aligning the interpretation of Article 9 of the WOS with the development of this doctrine within these tribunals. It can be deduced from the case law of the aforementioned tribunals that the following requirements must be met in order to determine liability as a superior: - the superior exercises effective authority and control over the subordinate in a hierarchical structure; the superior knew or had reason to know that a crime was imminent or was being committed by his subordinate; the superior fails (intentionally or unintentionally) to take necessary measures that are within his power to prevent the crime being committed. Liability in this case Co-perpetration The court has established that the defendant, by virtue of his position as superior, was responsible for the detention conditions and the order in the prison, including the allocation and transfer of prisoners. The defendant could not fulfil his duties alone; for this he worked together with the prison staff subordinate to him, such as the block commanders. Together with them, the defendant detained persons without a prior fair trial and created and maintained a detention regime in which the prisoners lacked adequate and good basic facilities, such as sanitation, food, medical care and airing. Part of that regime was the use of physical violence as punishment, and an atmosphere of fear, for example by placing spies in a cell. To achieve this, the defendant gave orders to his subordinates, but sometimes he intervened himself, as evidenced by the many witness statements. In view of these findings, one can speak of a close and conscious cooperation between the defendant and his subordinates, aimed at cruel treatment, assault on personal dignity, humiliating and degrading treatment and arbitrary deprivation of liberty of prisoners in the Pul-e-Charkhi prison. In the opinion of the court, the contribution of the defendant to this was of sufficient weight to classify him as a co-perpetrator in those violations of international humanitarian law. This also applies to the brutal treatment in block 3, as the latter can be seen as part of a policy of violent punishment of prisoners in which the defendant himself sometimes took an active part. The fact that the defendant may not have had the power to release prisoners by virtue of his position, as the defence has argued, does not prevent him from being held responsible as a co-perpetrator for arbitrary deprivation of liberty. Contrary to what the defence has argued, international humanitarian law does not make that requirement. It is sufficient that it can be established that the defendant has made a significant contribution to the continuation of the deprivation of liberty. That is certainly the case here, in view of the position and responsibilities of the defendant. Liability as a superior The court is of the opinion that the defendant can also be held liable as a superior for all of the foregoing. After all, he has deliberately allowed subordinates to – whether or not on his behalf – treat prisoners cruelly, assault them in their personal dignity, humiliate and degrade them and arbitrarily deprive them of their freedom. Although the precise command structure in the Pul-e-Charkhi prison has remained unclear, it can be established that the defendant exercised effective authority and control over his subordinates, being the block commanders, guards and others. He gave them orders, and those were followed. The defendant also knew what was going on in the prison, so he could also be expected to know what his subordinates were doing. He may not have been aware of every incident, but the behaviour in question was not incidental in nature. It has not been shown that the defendant has taken any measures against his subordinates. 20Nexus In the foregoing, the court has established that there was a non-international armed conflict going on in Afghanistan of which the defendant was aware, that violations of international humanitarian law had taken place and that the defendant is liable for this. The next question is whether there was a close connection between these violations and the armed conflict, and whether the defendant was aware of this. This relationship is also known as the nexus. The nexus requirement serves to distinguish war crimes from common crimes and other international crimes such as genocide and crimes against humanity. It follows from ICTY case law that the nexus does not require that the conduct took place in the course of the fighting or within the area where the actual combat took place, insofar as the crimes are closely related to the hostilities. A causal relationship is not required, but the conflict must have played an essential role in the possibility or decision to commit the crime, the manner in which the crime was committed or the purpose with which the crime was committed. Criminal liability for war crimes is not limited to the warring parties and those in close relationship with one of the parties. The nexus can be determined, among other things, on the basis of the status of the victim and the perpetrator under the Geneva Conventions and the role they played in the hostilities, whether the crime furthers the (end) goal of a military strategy and/or the act(s) were committed as part of or in the context of the offender's official duties. The perpetrator must have been aware of the factual circumstances that led to the armed conflict. It is not required that the perpetrator has made a legal analysis as to whether there was a (non-)international armed conflict. It must be established whether he or she was aware of the actual circumstances of the armed conflict. In concrete terms, the ICC considers that the perpetrator must be aware of the hostilities between (at least two) entities, that these hostilities have a certain intensity and that the entities are organised. In the opinion of the court, it follows from the factual findings in this case that there is a close connection between the armed conflict and the violations of international humanitarian law for which it holds the defendant liable. This leads to the following considerations. The violations of international humanitarian law established by the court were committed against political prisoners in the Pul-e-Charkhi prison, i.e. persons who were regarded by the incumbent Afghan regime as opponents of that regime, for example because they opposed the regime, or because they were linked to the previous regime. The detention of political prisoners in the Pul-e-Charkhi prison cannot be separated from the armed conflict. As the court established in Chapter 10, there was an armed conflict going on at the time between the Afghan regime, supported by the Soviet Union, and groups opposing that regime, in particular the Mujahedin. Although it cannot be established that the political prisoners offered armed resistance to the regime, they were among the regime's opponents, at least in the eyes of the regime. As a result, the regime saw an interest in detaining these political prisoners. This is also apparent from the witness statements. For example, several witnesses have testified that they were accused of being against the Soviet Union, or of having ties with the United States, the Soviet Union's opponent at the time. Thus, the conflict has played a vital role in the defendant's ability to commit the violations of international humanitarian law. In addition, the defendant allowed the detention conditions in the Pul-e-Charkhi prison to deteriorate, precisely because the prisoners were political opponents. Reference can be made to the various witness statements. Witness [person 16] stated that the high officials in the prison saw the prisoners as their enemies, they were anti-revolutionaries. For that reason, the prisoners and their relatives had to be put under pressure, according to the witness. Witness [person 14] stated that the detention regime under the defendant was getting worse, because he saw the prisoners as his enemy. Witness [person 4] stated that the defendant, when asked why he treated the detainees so badly, replied: "during your reign you also did that to us and killed us". This witness also stated that the defendant said to a fellow prisoner who had complained about the detention conditions: "you are a traitor, anti-revolutionary, you are against your comrades". Witness [person 11] stated that he was placed in isolation for 15 days after a spy reported on him to the defendant that the witness had defended the Mujahedin. According to this witness, the defendant told him: "The prisoners are rogues and they are against my revolution. Therefore, they should not be left alive and they should not be treated humanely. " In the opinion of the court, detention under these circumstances could be regarded as a way to (temporarily) eliminate political opponents and add suffering, so that they could no longer play a role in the conflict. Thus, the conflict has also played an essential role in the purpose with which the violations of international humanitarian law were committed. The court therefore believes that nexus has been proven. It also follows from the foregoing that the defendant was aware of the circumstances leading to the conflict. Reference can also be made to the witness statements, including those of [person 14] and [person 4], which show that the defendant received Russian advisers in the prison and that the defendant held talks with the prisoners about the party and the regime, and the statement from witness [person 2]. According to this witness, the defendant told him that anyone who doesn't like the Russian occupation or communism is from the CIA and "shouldn't be alive here." 21Conclusion – provability of the facts Violation of the laws and customs of war In view of all the foregoing, the court concludes that the defendant, together and in association with others, has violated the laws and customs of war,

Article 8

of the WOS, and that he has deliberately allowed subordinates to do so.

Article 9of the WOS.

Grounds for an increased sentence The indictment includes several statutory grounds for an increased sentence, derived from Article 8, paragraphs 2 and 3, of the WOS. It follows from the findings made above that several of these grounds have been proven. The court has already determined that the established facts constituted inhumane treatment and that these facts resulted in serious physical injury to the witnesses [person 11] (visual impairment) and [person 16] (back and neck hernia and bladder problems). The court also established that the offences involved acts of violence with combined forces against persons. After all, several witnesses have stated that violence was used during their detention in the Pul-e-Charkhi prison. Due to the extremely bad sanitary detention conditions, contracting various diseases was far from imaginary. In combination with the lack of medical facilities, death or serious physical injury was to be feared because of the established facts. Prisoners had no choice but to undergo their deprivation of liberty under the established conditions. Thus one can speak here of forcing to tolerate in conjunction with others. Finally, in the opinion of the court, the established facts were an expression of systematic terror and illegal action against a certain group of the population, being the political opponents detained in the Pul-e-Charkhi. 22The judicial finding of fact The court declares that it has been proved against the defendant that: in the period from 1 January 1983 up to and including 31 December 1990, in Kabul, together and in association with others, violated the laws and customs of war, while - those offences have resulted in serious physical injury and - those offences involved violence with united forces against persons and - those offences involved forcing with united forces others to tolerate and - those offences were expressions of a policy of systematic terror and unlawful acts against a certain group of the population and - from those offences death or serious bodily injury of persons other than the defendant was to fear and - those offences involved inhumane treatment, consisting in the fact that he, the defendant and/or one or more co-perpetrators, then and there (each time) acted in violation of - the provisions of the "common" Article 3 of the Geneva Conventions of August 12, 1949 and/or - international customary humanitarian law and/or the customary international law prohibition of arbitrary deprivation of liberty, - in connection with a (non-international) armed conflict on the territory of Afghanistan, with regard to persons who then did not participate directly in the hostilities, namely civilians who had been put hors combat by imprisonment, being: 1. [persons 1 and 2]; 2. [person 3]; 3. [person 4]; 4. [person 5]; 5. [person 6]; 6. [person 7]; 7. [person 8]; 8. [person 9]; 9. [person 10]; 10. [person 11]; 11. [person 12]; 12. [person 13]; 13. [person 14]; 14. [person 15]; 15. [person 16]; 16. [person 17]; 17. [person 18]; 18. [person 19]; and others, who were detained as political prisoners in blocks 1 and 2 and 3 of the Pul-e-Charkhi prison, - treated them cruelly and inhumanely and/or - repeatedly assaulted their personal dignity and treated the aforementioned persons humiliatingly and degradingly and/or - arbitrarily deprived them of their liberty; which 1) cruel and inhumane treatment and/or assault of the personal dignity and/or degrading and/or inhumane treatment and/or 2) whic