The Afghan national applied for asylum in the Netherlands in 2001, where he has resided together with his family ever since and obtained the Dutch nationality. However, an investigation revealed that the man may have entered the Netherlands using a false identity, raising suspicion that in the 1980’s he was in fact the general commander of the Pul-e-Charkhi prison in Kabul. On 12 November 2019, the accused was therefore arrested and charged for his alleged involvement in the commission of war crimes at the aforementioned prison, including cruel and inhumane treatment, outrages upon personal dignity and arbitrary detention of detainees.
Because these facts were charged as war crimes, the Dutch court is competent to hear this case. However, war crimes do require that a sufficiently close link exists between the counts charged in the Indictment and the armed conflict. This link is also known as a ‘nexus’. The Hague Court of Appeal has judged that – while an armed conflict existed between the Afghan Government forces, on the one hand, and the Mujahedin (Islamic armed groups), on the other – no nexus between the treatment of detainees and that conflict can be established. In this context, it is of particular importance that the detainees in question were not part of, or could be associated with, the Mujahedin. As a result, the defendant is acquitted for the commission of war crimes.
The District Court previously did convict the accused and had sentenced him to 12 years imprisonment. The Prosecution had requested the Court of Appeals to impose the same sentence.
