Supreme Court upholds Tamil Tigers' convictions in the Netherlands for offences committed during conflict in Sri Lanka
The Supreme Court of the Netherlands has determined that Dutch criminal law can be applied to members of an armed opposition group who commit terrorist offences outside the territory of the Netherlands in the course of an internal armed conflict. International humanitarian law (also known as the law of war) does not apply exclusively to such cases in a manner that renders general criminal law inapplicable.
The Supreme Court made this ruling in the context of criminal proceedings against ‘Tamil Tigers’ convicted in the Netherlands for involvement in the group ‘Liberation Tigers of Tamil Eelam’ (LTTE). The five defendants were convicted among others for participating, in the period from October 2003 to April 2010, in an international criminal organisation (LTTE) which had the aim of committing terrorist offences in Sri Lanka. Four of the five Tamil Tigers lodged appeals in cassation against their convictions by The Hague Court of Appeal. The Public Prosecution Service also lodged appeals in cassation in all five cases.
The issues addressed in the cassation proceedings included the question of whether in their capacity as LTTE members the defendants could claim they had ‘combatant status’ and that this status had entitled them to participate in the armed conflict against the Sri Lankan state in their struggle for an independent Tamil state. In that case they would be liable only for any violations of international humanitarian law. The Supreme Court ruled that they could not claim this status because international law grants it only to troops involved in an international armed conflict (in other words, an armed conflict between states) and not to fighters involved in an internal armed conflict. The armed conflict involving the state of Sri Lanka and the LTTE – during which the five defendants committed the offences of which they were convicted in the Netherlands – was an internal armed conflict and not an international armed conflict.
The cassation proceedings also considered whether the defendants could be prosecuted only in Sri Lanka for participation in the LTTE, or whether they could also be prosecuted in the Netherlands. The Supreme Court ruled that prosecution in the Netherlands was possible.
In the prosecution’s appeals in cassation, the Public Prosecution Service argued that the Court of Appeal ought to have imposed tougher sentences in view of international law obligations to punish terrorist offences. It also argued that the Court of Appeal wrongly acquitted the defendants of inciting the commission of violence or criminal offences against the authorities (opruiing). The Supreme Court ruled that the Public Prosecution Service’s arguments were unfounded.