“People or companies that conduct (international) trade... in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences. It should be made clear to them that they will face prosecution and long-term prison sentences...”Court of Appeal The Hague, Judgment, 9 May 2007
Earlier this month, the Supreme Court of the Netherlands upheld the conviction of a Dutch businessman, Frans van Anraat, for being an accessory to war crimes committed by the Iraqi regime in the 1980s. It thereby confirmed in most regards a 2007 judgment by the Court of Appeal in The Hague, which had found Van Anraat guilty of being an accessory to a violation of the laws and customs of war for having 'intentionally provided the opportunity and means' for attacks with mustard gas carried out in 1987 and 1988.
Between 1980 and 1988, Van Anraat had supplied Saddam Hussein's regime with at least 1'160 tons of TDG. TDG (short for 'Thiodiglycol' ) can be used to make mustard gas, a poisonous gas first used in World War I. This gas was used by Iraq in multiple attacks during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, which is mainly inhabited by Kurds. Mustard gas, as well as TDG, today fall under the 1993 Chemical Weapons Convention (CWC).
In the Court's view, Van Anraat knew that the TDG he supplied would be used for the production of mustard gas. Although TDG also has civilian applications, the Appeals Court considered that in the quantities as supplied by Van Anraat, the TDG could not have been used for non-military purposes. And, because Iraq was at war, Anraat was also 'very aware of the fact that – 'in the ordinary course of events' – the gas was going to be used', and that this use was actually taking place.
It should be noted that Dutch export control law did not require a special license for the export of TDG until the beginning of 1985. And of course, the Chemical Weapons Convention only entered into force in 1997. The 1925 Geneva Protocol certainly prohibited the use of mustard gas in war, but it said nothing about the possession, production or transfer of chemical weapon precursors. In addition, it was arguably only applicable in international armed conflicts, (although the customary international law norm against chemical weapons use was possibly already broader in scope and applied also to internal armed conflicts).
Van Anraat did not commit war crimes himself, nor did he supply the weapons with which they were committed. He 'only' furnished a precursor thereof (although an essential one) - a chemical moreover, that has legitimate civilian applications. Nevertheless, Van Anraat was convicted of a crime (a separate civil case will also be brought against him by victims of the attacks) because the Court found that 'it is beyond doubt that the regime in Bagdad...committed extensive and extremely gross violations of the international humanitarian law' – violations, to which Anraat made a 'conscious' and 'substantial contribution'.
In finding that serious violations of the laws of war had been committed, the Court did not exclusively base itself on the fact that a prohibited weapon had been used. Therefore, this judgment should also be of interest to persons trading in other types of weapons, including small arms and light weapons (SALW). The judgment sets another important precedent for holding criminally responsible persons who transfer arms that are likely to be used to commit gross violations of human rights law or serious violations of international humanitarian law. Hopefully, a future Arms Trade Treaty will ensure greater accountability in the international arms trade.
- Gerechtshof 's-Gravenhage (Court of Appeal The Hague), Judgment, 9 May 2007, LJN: BA6734.
- Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Judgment, 30 June 2009, LJN: BG4822.