Dutch decision not to prosecute suspect of Afghanistan War Crimes

The Netherlands National Prosecutor’s Office has decided not to prosecute 66 year-old Dutch Afghan Sadeq A. He was arrested in October 2015 in Rotterdam as a suspect of War Crimes, committed in Afghanistan in 1979.

Decision not to prosecute

There are several grounds for the decision not to prosecute. The Prosecutor’s Office has concluded that, despite a thorough and protracted investigation, only few eye witnesses have been found, who could identify perpetrators. In some cases, different witnesses gave different identifications for the same perpetrator.

Furthermore, where A. and his subordinates were identified as perpetrators by witnesses, the possibility of errors and mistaken identity cannot be ruled out. The passage of time between the commission of the crimes and the hearing of the witnesses as well as the simultaneous presence of different military units and commanders in the Asadabad region, are significant in this regard. The fact that most eye-witnesses did not know the soldiers before the  crimes took place, may also have caused errors regarding the identification of perpetrators. Other commanders have since died or are outside The Netherlands’ jurisdiction.

Because the possibility of error cannot be ruled out, the Netherlands National Prosecutor’s Office has decided not to prosecute A.

This decision can be reconsidered on the basis of new information. If victims or their relatives disagree with the decision not to prosecute, they can file a complaint against it on the basis of Article 12 of the Netherlands Code of Criminal Procedure with the Court of Appeals in The Hague.

Dutch investigation

The International Crimes Team of the Netherlands Police started an investigation into A. under the authority of the Netherlands National Prosecutor’s Office in 2008. The start of the investigation was caused by a criminal complaint that was filed by a former  mayor of Asadabad together with dozens of villagers. The criminal complaint was addressed to the Secretary-General of the United Nations. In it, several Afghan military and civil officials were held responsible for extrajudicial killings in the Asadabad region on 19 and 20 April 1979. One of them was A., the erstwhile commander of commando-unit 444 of the Afghan government armed forces. The 2005 report Casting Shadows: War Crimes and Crimes against Humanity 1978-2001 by the Afghan Justice Project, also links A. to the killings.

Witnesses heard as part of the Dutch investigation include, residents of Asadabad, former Mujahedin-fighters, officials of the ruling party of communist Afghanistan and members of the government armed forces at the time.

Killings of civilians and fighters who are hors de combat in connection with an armed conflict are violations of Common Article 3 of the Geneva Conventions. These violations have been implemented as crimes in Dutch Criminal Law in 1952. There is no statute of limitation for these crimes. Because A. is a Dutch national and because he is present in The Netherlands, he is subject to Dutch jurisdiction.

Silent witnesses of the executions

In the night of 19 to 20 April 1979, Mujaheddeen-fighters entered Asadabad, the capital of Kunar province. They were repulsed by troops belonging to the communist Afghan government that were based there for the protection of the town. After the attackers had been beaten off, some of the Mujaheddeen were left behind in the residential areas of Asadabad and surroundings. In the morning of 20 April, government armed forces surrounded these areas and cleared them of Mujaheddeen. In this operation, hundreds of civilians were killed, together with dozens of Mujaheddeen who were hors de combat.

The estimates of the number of civilian victims range from 600 to 1200. Some civilians and Mujaheds were shot on the spot. Others were taken and killed elsewhere. Most of them, hundreds, were gathered by government soldiers on two fields in Kerala, on the eastern bank of the Pech-river, and shot shot there. Afterwards, they were buried with bulldozers, dead or alive.

The mass graves are still there today, as silent witnesses of the 1979 executions. These killings are known as the ‘Kerala-massacre’ and have left their traces in the Afghan wars that continue to the present day.

Fighting impunity

Afghanistan has been at war for the last four decades. Because the perpetrators of war crimes can never be allowed to enjoy impunity, this conflict will continue to have the close attention of the Netherlands National Prosecutor’s Office. The Netherlands will not be a safe haven for war criminals. That is why Dutch Prosecutors strive to fight impunity for these crimes. This fight is important to the Afghan community in Afghanistan and abroad. Impunity contributes to the continuation of conflict. That is why the International Crimes Unit is devoted to tracking down war criminals and bringing them to justice, even if this may take  years.