Genocide—Van Anraat Update

Last December 23, we discussed the conviction of Frans Van Anraat for complicity in war crimes under Dutch law. Although Van Anraat was acquitted of complicity in genocide, he was nonetheless sentenced to 15 years in prison for his role in providing chemicals to Saddam Hussein’s regime. The court found that the chemicals were used in the manufacture of the poison gas that was used in deadly attacks against Kurdish villages in the 1980s.

Today, it was announced that the Dutch Public Prosecutor's Office will appeal the acquittal of charges of complicity in genocide.^[1] The Court acquitted Van Anraat on the genocide charge because it found that the prosecution failed to show that the defendant knew that the chemicals would be used in the poison gas. Van Anraat is also appealing his conviction and his sentence. ^[2]

The Netherlands is a state party to the Rome Statute of the International Criminal Court (ICC) and fulfills its obligations in part by conforming its relevant criminal laws to the Rome Statute. Under the Rome Statute, complicity in genocide is described in Article 25(3):

…a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission

Mere presence or proximity is usually not enough to establish complicity.^[3] However, if Van Anraat was aware of an intended deadly purpose for his chemical merchandise and failed to take steps to prevent such use, he could be found liable for assisting or providing means for the criminal acts.

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[1] Saddam's Chemical Supplier Faces Genocide Appeal, Expatica News, Jan. 6, 2006.
[2] Id.
[3] The ICC has not yet tried any cases of violations of Rome Statute provisions. The case most often cited in support of this interpretation is an early case from the International Criminal Tribunal for the Former Yugoslavia. See Prosecutor v. Tadic, IT-94-1-A, July 15, 1999.