A Surinam Crime Before a Dutch Court: Post-Colonial Injustice or Universal Jurisdiction?

Leiden Journal of International Law

Volumn 14, Issue 2, 2001, Pages 455-476

  van Der Oije, Pita J C Schimmelpenninck ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

crimes against humanity; Surinam; The Netherlands; torture; Universal jurisdiction

Indexed keywords

EID: 85009554703     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000243     Document Type: Article

References (77)

1. John Baboeram (lawyer), Bram Behr (journalist), Cyrill Daal (president of the largest labour union of Surinam), Kenneth Gonçalves (lawyer and president of the Bar), Eddy Hoost (lawyer and the first Minister of Justice of the Republic of Surinam), André Kamperveen (journalist, former Minister of Health and Culture, vice-president of the FIFA-the world soccer association), Gerard Leckie (Dean of the Faculty of Economics of the University of Surinam), Sugrim Oemrawsingh (former member of parliament, member of the VPS Hindu opposition party), Leslie Rahman (trade unionist and journalist), Soerendre Rambocus (military officer), Harold Riedewald (lawyer), Jiwan Sheombar (military officer), Jozef Slagveer (journalist), Robby Sohansingh (businessman), and Frank Wijngaarde (journalist). See T.M. Schalken, Suriname: Een Necrologie, 2 NJB 53 (1983). International investigations did take place, see, e.g., Report of Special Rapporteur Amos Wako to the UN Economic and Social Council, UN Doc. E/CN.4/17 (1985) (Commission on Human Rights, 41st Session, Agenda Item 12); Report of the Dutch Lawyers Committee for Human Rights, The Events in Paramaribo, Surinam, 8-13 December 1982 (14 February 1983).
2. The Surinam Court of Justice ordered the prosecution of Bouterse and others on 31 October 2000. See, e.g., Volkskrant and NRC, 20 November 2000, which reported that criminal investigations in Surinam started 17 November 2000, thereby barring prosecution of the crimes which allegedly took place on 8 December 1982.
3. Decision of 20 November 2000 handed down by the fifth full-bench division responsible for hearing civil cases concerning petition R 97/163/12 and R 97/176/12 Dutch Code of Criminal Procedure submitted by R. Wijngaarde and R. Hoost, petitioners, available at: http//www.gerechtshof-amsterdam.nl/uitspraken/art12/Bouterse/bes_bouterse.htm (in Dutch) (hereinafter ‘Decision November’).
4. On file with the Amsterdam Court under R 41/96 and R 44/96. On the basis of Art. 12, petitioners can complain against the decision not to prosecute. The procedure is of an administrative nature and is conducted by the bench division of the Court of Appeal responsible for hearing civil cases. Central in this complaint procedure is the public prosecutor's discretionary power to take action or to dismiss a complaint (Art. 167, Dutch Code of Criminal Procedure), because, e.g., (good) diplomatic relations with a certain state could be jeopardised. Art. 12 gives citizens the opportunity to challenge such a decision. See G. Corstens, Het Nederlands strafprocesrecht 480-489 (1995).
5. Arts. 5(1 sub 2) and 289, Dutch Penal Code declare the Dutch criminal law applicable to certain offences committed by Dutch nationals outside The Netherlands on the basis of the active personality principle. See B. Swart & A.H. Klip, International Criminal Law in The Netherlands 59 (1997).
6. Decision of 3 March 2000, available at: http://www.gerechtshof-amsterdam.nl/uistpraken /art12/Bouterse/tus_bes_bou 3.htm (in Dutch) (hereinafter ‘Decision March’). See H.A. Ahmed Ali & A.H. Klip, Nationaliteit en uitlevering van Bouterse, 28 NJB 1242-1244 (1998).
7. Decision March, id., at paras. 3.8 and 4.1.
8. Id., at para. 4.2; Decision November, Decision March note 3, at para. 3.3. The Court based a significant part of its conclusions on the opinion of an appointed expert, the South African C.J.R. Dugard, Professor in Public International Law, Leiden University, The Netherlands. His opinion is dated 7 July 2000 and is available at http://www.gerechtshof-amsterdam.nl /uitspraken/art12/Bouterse/tus_bes_bou_3.htm (in English) (hereinafter ‘Dugard’).
9. See, e.g., C. Bassiouni, Crimes Against Humanity in International Law 227-241 (1999); K.C. Randall, Universal Jurisdiction Under International Law, 66 Texas LR 785, at 785, 788 (1988); W.B. Cowles, Universal Jurisdiction Over War Crimes, 33 California LR 177-218 (1945).
10. See, e.g., M. Kamminga, The Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences: Final Report (second draft January 2000, written at the request of the Committee on Human Rights of the International Law Association, on file with author), at 11, where he argues that until recently, a handful of states mostly in Europe and Latin America have provided their courts with the specific competence to try certain crimes under the principle of universal jurisdiction. At 18, he states that all known cases where states did exercise universal jurisdiction were member states of the Organisation for Economic Co-operation and Development with respect to crimes committed outside these countries.
11. Such as the passive personality principle, see, e.g., the Eichmann trial and the proceedings against the Panamanian ex-dictator Manuel Noriega in the US.
12. See, e.g., T. Meron, International Criminalization of Internal Atrocities, 89 AJIL 554, at 563, 567, 569; S. Ratner & J. Abrams, Accountability for Human Rights in International Law. Beyond the Nuremberg Legacy 145-146 (1997); Kamminga, Such as the passive personality principle note 10, at 10-11, 18-19; Swart & Klip, Such as the passive personality principle note 5, at 63-65; A. Cassese, The Statute of the International Criminal Court: Some Preliminary Reflections, 10 EJIL 144-171, at 148 (1999)
13. Proceedings of the Fourth Hague Joint Conference held in The Hague, The Netherlands, 2-5 July 1997 (T.M.C. Asser Institute), at 128. It was not until 1995 that The Netherlands appointed a sole prosecutor to deal with potential cases of war crimes. With regard to genocide, torture, and crimes against humanity, a prosecutor has yet to be appointed. See A.H. Klip, De Roep om Strafrecht, 13 De Helling 19 (2000).
14. The provisions relating to jurisdiction have proven to be the most complex and sensitive during the drafting of the ICC Statute, see P. Kirsch & J. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 AJIL 8 (1999). Pursuant to Arts. 1, 17, and 18 ICC Statute, jurisdictional issues are governed by the principle of complementarity. It provides that the ICC jurisdiction complements, rather than replaces, national judicial systems.
15. During the drafting of the ICC Statute, a clash took place between sovereignty-oriented countries (such as the US, China, and France) which pushed for the power to set investigations and prosecutions in motion only by the Security Council, and between states (led by Canada, Germany, and the United Kingdom) which wanted an independent prosecutor who could initiate proprio motu investigations and prosecutions, together with a court endowed with universal jurisdiction over certain international crimes. See Cassese, The provisions relating to jurisdiction have proven to be the most complex and sensitive during the drafting of the ICC Statute note 12, at 161.
16. See, e.g., J. Broehmer, Immunity of a Former Head of State. General Pinochet and the House of Lords: Part Three, 13 LJIL 229 (2000); E. Hirsch Ballin, De zaak-Pinochet, 49 Ars Aequi 481-488, at 486 (2000).
17. Consider, e.g., the following: during a short stay of General Pinochet in Amsterdam in May 1994, two incidents of torture were alleged to have taken place after the 1984 UN Convention Against Torture had entered into force in The Netherlands. The prosecutor decided on the basis of the principle of discretionary powers not to start proceedings against Pinochet (apart from the important fact that Pinochet was no longer present on Dutch territory). This decision prompted The Netherlands’ Chile Committee to start a complaint procedure on the basis of Art. 12. The same Amsterdam Court, consisting of different judges, declared the complaint of the Chile Committee unfounded as it was evident that criminal prosecution of Pinochet by the Dutch public prosecutor would encounter many judicial and factual problems (Decision of 4 January 1995, petition no. 578/94), see Ch. Ingelse & H. van der Wilt, De zaak Pinochet. Over universele rechtsmacht en Hollandse benepenheid, 8 NJB (1996). Many similar obstacles to prosecution exist with regard to the prosecution of Bouterse but the Court in this instance concluded the opposite.
18. Case concerning the arrest warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 17 October 2000, available at http://www.icj-cij.org.
19. In March 2001, the Dutch crown prince announced his engagement with Máxima Zorreguieta. Her father served under the military junta of Videla in Argentina (1976-1982) as State Secretary and as Minister of Agriculture. Recently, the Dutch Board of Procurators-General has decided not to prosecute Zorreguieta for the alleged responsibility for the commission of crimes against humanity, after a complaint had been filed by a Dutch citizen. An Art. 12 procedure is currently pending with same Amsterdam Court that decided that Bouterse can be prosecuted for the December murders. See NRC of 7 June 2001, Ambtenaren Zorreguieta verdwenen, available at http://www.mrweb.nl, 4 November 2000, Aangifte tegen ‘schoonvader’ kroonprins, and 25 June 2001, OM Amsterdam krijgt aangifte Zorreguieta, available at http://www.volkskrant.nl/achtergronden/dossiers.
20. Decision March, the Dutch crown prince announced his engagement with Máxima Zorreguieta. note 6, at paras. 5.5.1-5.5.2. The Court also wanted to know whether, according to customary law as it stood in 1982, the acts were subjected to statutory limitations. R. van Dongen, De december moorden berecht?, 23 NJB 1142 (2000), n. 47 notes that, although The Netherlands has not ratified the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, it did abolish in domestic law the existing statute of limitations with regard to war crimes and crimes against humanity in 1971. It also ratified the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes, but the Convention has not yet entered into force. International law at least seems to permit states to eliminate statutes of limitations for crimes against humanity and torture, and a duty to do so is emerging; see Dugard, the Dutch crown prince announced his engagement with Máxima Zorreguieta. note 8, at paras. 4.5.1-4.5.6 and 5.5.1. Note that the topic of statutory limitations is not touched upon in any of the Articles in the UN Convention Against Torture.
21. Decision March, Decision March note 6, at para. 5.3.2; Dugard, Decision March note 8, at para. 3; Decision November, Decision March note 3, at para. 8.1.
22. Decision March, Decision March note 6, at para. 5.3.2.
23. Decision November, Decision March note 3, at paras. 5 and 8.2; Dugard, Decision March note 8, at para. 4.
24. Ratner & Abrams, Decision November note 12, at 60.
25. Decision November, Decision November note 12 note 3, at para. 5.2.
26. See Ratner & Abrams, Decision November note 12, at 49-55; Y. Dimstein, Crimes Against Humanity After Tadić, 13 LJIL 373, at 383-388 (2000); Bassiouni, Decision November note 9, at 86; Dugard, Decision November note 8, at paras. 4.2.1.-4.2.3.
27. See Swart & Klip, Decision November note 12 note 5, at 31-32.
28. See also A.H.J. Swart, De Berechting van Internationale Misdrijven 34-37 (1996).
29. Knezevic case, HR (Dutch Supreme Court), 11 November 1997, NJ 463 (1998) (on the prosecution of Yugoslavian war criminals in The Netherlands).
30. Also concluded by Dugard, Knezevic case note 8, at paras. 8.3.1-8.3.3; Decision November, Knezevic case note 3, at para. 8.2.
31. Dugard, Also concluded by Dugard note 8, at para. 5; Decision November, Also concluded by Dugard note 3, at para. 6. Although Art. 5(1)(c) of the UN Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (hereinafter ‘CAT’) recognises the passive personality principle as a possible basis for jurisdiction and one of the victims, Frank Wijngaarde, was a Dutch national, Dutch municipal law does not allow the exercise of jurisdiction on grounds of passive personality. In Dutch law the passive personality principle is applied only in special statutes on the repression of offences committed in time of war. See Swart & Klip, Also concluded by Dugard note 5, at 58.
32. UN GA Res. 39/46, 10 December 1984.
33. Art. 5 CAT. See also Ingelse & Van der Wilt, UN GA Res. 39/46 note 17, at 280.
34. Decision March, Art. 5 CAT. note 6, at paras. 5.2.5-5.2.7; Decision November, Art. 5 CAT. note 3, at para. 7.
35. See, e.g., K. Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals 240 (1997); Meron, Decision March note 12, at 571; Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985), 603 F. Supp. 1468, 774 F.2d 571, 475 U.S. 1016 (1986).
36. Dugard, War Crimes Against Women: Prosecution in International War Crimes Tribunals 240 note 8, at para. 5.3.2(d).
37. See, e.g., Dugard, War Crimes Against Women: Prosecution in International War Crimes Tribunals 240 note 8 note 8, at paras. 5.6.2-5.6.3, n. 66: R. v. Bow Street Metropolitan Magistrate and Others, Ex Parte Pinochet Ugarte (Amnesty International and others intervening) (No. 3) (1999), 2 All ER 897 (HL) at 178 b-c, available at http://www. parliament.the-stationary-office.co.uk.
38. Art. 3, 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’); Art. 7, 1966 International Convention on Civil and Political Rights (ICCPR); Art. 5, 1969 American Convention on Human Rights (‘ACHR’); and Arts. 4 and 5, 1981 African Charter on Human and Peoples’ Rights (‘ACHPR’) also laid down the customary law prohibition of torture. The Netherlands ratified the ECHR in 1954 and the ICCPR in 1978.
39. UN GA Res. 3059 (XXVIII) of 2 November 1973; GA Res. 3218 (XXX) of 6 November 1974; UN GA Res. 3452 (XXX) of 9 December 1975 (the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted without a vote); UN GA Res. 31/85 of 13 December 1976.
40. Dugard, UN GA Res. note 8, at para. 5.3.2(e). See, UN GA Res. note 38, Lord Browne-Wilkinson, at 109 c-d, g-h; Lord Hutton, at 164 b-c; Lord Millet, at 177 b-c.
41. See Van Dongen, See Art. 1 CAT. note 2, at 1141, n. 35, where he refers to K. Reid, A Practitioner's Guide to the European Convention of Human Rights 129-130 (1998); in n. 36 Van Dongen refers to Case of Kokkinakis v. Greece, judgement, 25 May 1993, ECHR (Ser. A), at 260-A; Case of Cantoni v. France, judgement, 15 November 1996, R.J.D. (1996-V), No. 20; Case of C.R. v. The United Kingdom, judgement, 22 November 1995, ECHR (Ser. A), at A335-C; Case S.W. v. The United Kingdom, judgement, 22 November 1995, ECHR (Ser. A), at A-335-B. In the latter two cases, the European Court decided that it would be in violation of the Convention not to punish certain acts (attempts at indecent assault and rape within the marriage) of which the accused could have known its criminality, although they were not made punishable at the time of commission.
42. Reid, See Art. 1 CAT. note 2 note 43, at 129.
43. Dugard, See Art. 1 CAT. note 2 note 43 note 8, at para. 5.7.7. Art. 28 of the 1969 Vienna Convention on the Law of Treaties reads: “Unless a different intention appears from the treaty or is otherwise established, its prohibitions do not bind a party in relation to any acts or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” See Dugard, See Art. 1 CAT. note 2 note 43 note 8, at para. 8.4.5, referring to a definition given by D.H. Doherty, What is Done is Done: An Argument in Support of a Purely Prospective Application of the Charter of Rights 125 (1982): A retroactive penal statute is one which is intended to render criminal an act which was innocent when it was committed. It is proclaimed to have effect as of a time prior to its enactment. The statute operates backward and changes the law as of some prior date to proclamation. A retrospective statute is one which proclaims that the consequences of an act done prior to proclamation are to be given a different legal effect after proclamation as a result of the enactment of the statute. It operates only in the future, after proclamation, but changes the legal effect of an event which occurred prior to proclamation. Keeping these definitions in mind, there is clearly a distinction between a retroactive and retrospective application. A retroactive application takes an act or omission that was not previously criminal, and retroactively deems that act or omission to be criminal at a later date. A retrospective statute does not create new offences. Rather it merely operates to retrospectively give courts jurisdiction over criminal offences.
44. Arts. 5 and 7 CAT; Dugard, See Art. 1 CAT. note 2 note 43 note 8 note 8, at paras. 5.7.3-5.7.6, quotation para. 5.7.7.
45. Dugard, Arts. 5 and 7 CAT; Dugard note 8, at para. 8.4.4. points to the Australian War Crimes Amendment Act of 1988 and the 1987 Canadian legislation providing for the prosecution of persons guilty of war crimes and crimes against humanity. Both statutes, in providing for the retrospective force of such crimes, cover conduct that would have been criminal under some other name in Australia or Canada, respectively. See also M.E. Villiger, Customary International Law and Treaties, at 253-254 (1997). The author states that the declaratory rules of the conventional text constitute a code, and to the extent that the rules reflect customary law, they are binding qua customary law upon all states, whether or not the latter have ratified the Convention. Non-declaratory rules, on the other hand, have no such binding effects. In other words, one is not applying today's customary rules on facts and situations of the past (which would be exceptional), but one is applying the then already existing customary law rule through a treaty which was declaratory of that rule when it came into effect on a later date. See also Dugard, Arts. 5 and 7 CAT; Dugard note 8, at para. 8.4.5, where he advises the Court to look at the way Canadian courts applied a statute which gave retrospective effect to crimes against humanity committed outside Canada in the face of a prohibition on retroactive legislation contained in the Canadian Charter of Rights and Freedoms. The courts held up the validity of the Canadian Statute on the ground that it did not violate the prohibition on retrospectivity because the conduct in question was “criminal according to the general principles of law recognized by the community of nations” (Sec. 11(g) of the Charter of Rights and Freedoms), see R. v. Finta, judgement, 82 ILP 425, at 574 (1994).
46. See Title XX of the Second Book of the Dutch Penal Code and Memorie van Toelichting, TK 1986-1987, 2004 2, no. 3, at 1.
47. Decision November, See Title XX of the Second Book of the Dutch Penal Code and Memorie van Toelichting note 3, at para. 6.4.
48. See, e.g., G.A.M. Strijards, Nederlands dualisme en zijn strafmacht, 44 NJB 2113-2119 (2000).
49. Swart & Klip, Nederlands dualisme en zijn strafmacht note 5, at 63.
50. Dugard, Nederlands dualisme en zijn strafmacht note 5 note 8, at para. 8.2.2, referring to Swart & Klip, Nederlands dualisme en zijn strafmacht note 5 note 5, at 27-38.
51. Strijards, Nederlands dualisme en zijn strafmacht note 5 note 8 note 50, at 2114-2115. Dualism implies an obligation to transform rules of international public law into a state's national legal sphere. Without being transformed first, international rules cannot be invoked against that state. See Art. 1(1) Dutch Penal Code, Arts. 16 and 93 Dutch Constitution and Art. 7 ECHR. Although the revised Dutch Constitution of 1983 does contain an article on the ‘self-executing’ norms of international law, and thereby opens up the national legal sphere to international law, it only concerns rules that can be directly invoked by the individual citizen.
52. Strijards, Nederlands dualisme en zijn strafmacht note 5 note 8 note 50 note 50, at 2115. He bases his statement on the legislative history of the nulla poena principle in Dutch law. At 2116 the author points out the special criminal law, Besluit Buitengewoon Strafrecht Stb. D 61 and Besluit Opsporing Oorlogsmisdrijven, Stb. F 85 that was applied in The Netherlands after World War II to prosecute alleged perpetrators of war crimes committed during World War II but not punishable at that time. It is clear that the legislator meant this law to be an exception to the rule.
53. Strijards, See Title XX of the Second Book of the Dutch Penal Code. note 50, at 2118-2119.
54. Swart & Klip, See Title XX of the Second Book of the Dutch Penal Code. note 50 note 5, at 63-64, 69.
55. See Ingelse & Van der Wilt, See Title XX of the Second Book of the Dutch Penal Code. note 50 note 5 note 17, at 284, where they refer to the initial report of The Netherlands to the Committee Against Torture, CAT/C/9/Add. 1, at 20-23.
56. Strijards, See Title XX of the Second Book of the Dutch Penal Code. note 50 note 5 note 17 note 50, at 2117. See Knezevic case, See Title XX of the Second Book of the Dutch Penal Code. note 50 note 5 note 17 note 30.
57. A.H. Klip, Dubbele vervolging voor de Decembermoorden?, 44 NJB 2120-2121 (2000).
58. Art. 94, Surinam Penal Code.
59. Klip, Art. 94 note 13, at 18-19. See also the commentary on the Art. 12 procedure in Corstens, Art. 94 note 4, at 480-489; Arts. 4 and 68, Dutch Penal Code; Art. 552t, Dutch Code of Criminal Procedure. Note that on the basis of the Raamverdrag of 18 June 1992, Trb. 103 (1992), a mutual friendship and assistance treaty between Surinam and The Netherlands, The Netherlands is obliged to co-operate with Surinam.
60. Art. 9, Decree on Extradition; Decree C-75, Staatsblad of the Republic of Surinam 1983, no. 52.
61. Klip, Art. 9 note 60, at 2121.
62. Art. 456, Dutch Code of Criminal Procedure. This is called cassation in the interest of law. A decision on the basis of Art. 12, Dutch Code of Criminal Procedure is final and cannot be appealed. The decision of the Amsterdam Court thus cannot be overturned and the criminal court hearing the case would have to follow the Supreme Court judgement.
63. Decision March, Art. 456 note 6, at para. 4.2; Decision November, Art. 456 note 3, at para. 3.
64. The Republic of Surinam became a member of the UN and the Organisation of American States (‘OAS’) after it gained independence in 1975. Surinam ratified the ICCPR in 1976, the 1985 Inter-American Convention to Prevent and Punish Torture (‘Inter-American CAT’) in 1987, and the ACHR in 1987. When ratifying the ICCPR, Surinam stated that it considers a state of emergency to have existed between December 1986 and 1 September 1989 (which obviously excludes December 1982). It also ratified the First Optional Protocol and the International Covenant on Economic, Social, and Cultural Rights (‘ICESCR’). As yet, it has not become party to the CAT. The UN and OAS Charter as well as the ICCPR are aimed at respect for the inherent dignity and the equal and inalienable rights of all members of the human family, the expressed foundation of freedom, justice, and peace in the world. See also the Amsterdam Court's Decision, at para. 4.2.
65. Anil Ramdas, NRC of 24 July 2000.
66. The widow of the murdered president of the bar, Mrs Lilian Goncalves-Ho Kang You, stated that the Surinam legal system is not only difficult to work in because of politics, but also because of a total lack of logistical resources. See Juridische Ontwikkelingshulp Nederland-Suriname, Mr. Het Magazine Voor Juristen 27 (2000). 70. NRC of 4 and 5 December 1997; H.K. Fernandes Mendes, De Staatsgreep in Suriname, 5 NJB 149 (1983).
67. See, e.g., NRC of 24 October 2000; Volkskrant and NRC of 2 November 2000.
68. Art. 10(2)(B), Overeenkomst tussen het Koninkrijk der Nederlanden en de Republiek Suriname betreffende uitlevering en rechtshulp in strafzaken of 27 August 1976, Trb. 143 (1976). See also Art. 552(L)(c), Dutch Code of Criminal Procedure.
69. Decision November, Art. 10(2)(B) note 3, at para. 3.4.
70. See Art. 12(i), Dutch Code of Criminal Procedure.
71. Dugard, See Art. 12(i) note 8, at para. 7.1.1; S.S. Lotus case (France v. Turkey), 1927 PCIJ (Ser. A) No. 10; R. Jennings & A. Watts (Eds.), Oppenheim's International Law, at 470-471 (1992).
72. At present, 430,000 live in Surinam and 300,000 in The Netherlands of whom 100,000 were born in Surinam, see NRC of 16 November 2000.
73. Dugard, At present note 8, at para. 1.1.
74. Decision November, At present note 8 note 3, at para. 5.4.
75. Dugard, Decision November note 8, at para. 5.7.8.
76. Twice before The Netherlands has tried in vain to have Bouterse extradited on charges of drug trafficking. The first time was in the summer of 1997 when Bouterse visited Brazil. The Brazilian government however made it clear that it was not willing to arrest the high-ranking politician of a neighbouring country. The second attempt was in 1998, in Trinidad. The earlier Brazilian example was repeated and Bouterse's extradition refused. See A.H. Klip, Drugs Extradition Request for Desi Bouterse Fails Twice, 14 International Enforcement Law Reporter 318 (1998). On 30 June 2000, the district court of The Hague Court sentenced Bouterse to 11 years in prison, see, e.g., http//: www.nrc.nl/W2/Lab /Bouterse/inhoud.html for background information on the case in Dutch. Trial in absentia was possible because jurisdiction over drug-related crimes is separately codified in the Dutch Opium Act in which nationality does not form a distinctive factor in the attribution of jurisdiction, see Ahmed Ali & Klip, Decision November note 8 note 6; A.H.J. Swart, Suriname, Drugs en Internationale Samenwerking in Strafzaken, NJB 2049-2058 (1997).
77. On 8 May 2001, the Procurator-General (‘PG’) advised the Dutch Supreme Court not to prosecute Bouterse for the December murders. See No. CW 2323, 8 May 2001. In sum, the PG stated that: (1) The Dutch Torture Act could not be applied retrospectively; (2) Manslaughter and murder do not fall under the definition of torture of the Dutch Torture Act; (3) The Netherlands does not have jurisdiction over a non-Dutch national for manslaughter or murder committed outside The Netherlands. For as for as torture is concerned, The Netherlands only has jurisdiction after implementation of the Dutch Torture Act; (4) The crime of torture (Art. 300 Dutch Penal Code) had prescribed before the Amsterdam Court decided in the case; (5) An absent non-Dutch offender cannot be tried in The Netherlands for the crimes discussed and committed abroad. This information is available at: http://www.rechtspraak.actueel under “Vordering tot cassatie in het belang der wet inzake Bouterse.” It is likely that the Supreme Court will follow the PG's advice.