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Compensation for Victims of Chemical Warfare in Iraq and Iran Through Domestic Criminal and Civil Proceedings in the Netherlands

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Compensation for Victims of Chemical Warfare in Iraq and Iran Through Domestic Criminal and Civil Proceedings in the Netherlands chapter 15 Compensation for Victims of Chemical Warfare in Iraq and Iran through Domestic Criminal and Civil Proceedings in the Netherlands Liesbeth Zegveld A The Case against Van Anraat In 2005, two decades after the Iran-Iraq war, the Dutch public prosecutor brought criminal proceedings against Frans van Anraat for complicity in war crimes and genocide. Van Anraat, a Dutch businessman, sold huge quantities of chemical thiodiglycol (tdg) to the regime of Saddam Hussein, whose chem- ical warfare programme relied heavily on foreign suppliers. tdg was crucial for the production of mustard gas, used by the Ba’athists in the war against Iran and in their attacks on Kurds in 1987 and 1988, which included the Anfal campaign.1 In December 2005, Van Anraat was convicted for complicity in war crimes.2 This verdict was confirmed by the Court of Appeal in May 20073 and by the Supreme Court in June 2009.4 Van Anraat was convicted for violating the 1925 Geneva Gas Protocol,5 as well as international customary law prohibiting the use of chemical weapons in an international armed conflict and indiscriminate attacks.6 During the war, Iraq also used chemical weapons against its Kurdish minority population, in particular in an attack on the town of Halabja in northern Iraq in March 1988. As the 1925 Geneva Protocol does not cover the use of chemical weapons 1 See on the criminal law aspects of this case Herman van der Wilt, ‘Genocide, Complicity in Genocide and International v. Domestic Jurisdiction. Reflections on the Van Anraat Case’ (2006) 4(2) J Intl Crim J 239– 257. 2 District Court of The Hague, 23 December 2005, ecli:NL:rbsgr:2005:AU8685. 3 Court of Appeal of The Hague, 9 May 2007, ecli:NL:ghsgr:2007:BA4676. 4 Supreme Court of the Netherlands, 6 June 2009, ecli:NL:HR:2009:BG4822. 5 ‘Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare’ (The Hague Convention of 17 June 1925). Both Iran and Iraq were party to the Gas Protocol. 6 The Dutch War Crimes Act 1952, penalises violations of the laws and customs of war (article 8). This Act was replaced by the International Crimes Act 2003. © Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004377196_017 402 Zegveld against its own population, the indictment also included violation of Common Article 3 of the Geneva Conventions.7 Several Iranian and Kurdish victims of Iraq’s mustard gas attacks filed claims for compensation in the criminal case against Van Anraat, as the viola- tions listed above constituted not only war crimes, but also torts under Dutch law against those who had suffered damage as a result of these crimes. Fifteen victims of the Iraq chemical attacks, both from Iran and Iraq, joined in the criminal case against Van Anraat. These victims submitted to the Dutch court a claim for compensation for the damages and injuries they had suffered. The victims’ claims filed against Van Anraat were awarded in first instance but dis- missed on appeal twice.8 The compensation claims were considered to be of an accessory nature to the criminal proceedings and hence too complex to be decided on by a criminal court. According to the court, difficult issues included the applicable law and statute of limitations.9 Due to this unsatisfying result for the victims, a case was brought in the civil courts and damages were award- ed both in first instance and on appeal.10 Every victim was awarded €25,000 in damages. Although the victims’ claims were dismissed in the criminal case against Van Anraat, the case offers interesting reflections about the obstacles faced in obtaining compensation for violations of international humanitarian law in domestic criminal proceedings. I’ll discuss several aspects of the Van Anraat case: the establishment of the facts, mass nature of the victims’ claims, and determination of the damages. It will become apparent that many difficulties faced by the Dutch criminal court in Van Anraat are similar to those faced in international criminal proceedings, as illustrated by the practice of the Interna- tional Criminal Court (icc). This international court may award reparations for 7 Article 3 common to the four Geneva Conventions of 1949. 8 Court of Appeal, The Hague, 9 May 2007, ecli:NL:ghsgr:2007:BA4676, para. 18; Su- preme Court, The Netherlands, 6 June 2009, ecli:NL:HR:2009:BG4822, para. 13. 9 As for the applicable law the Dutch court had to apply the lex loci delicti, the law applicable in the state where the tort was committed, i.e. Iraqi and Iranian law. The court, being in the first place a criminal court, did not feel competent to interpret difficult rules of Iraqi and Iranian law. A second reason why the cases were dismissed in appeal was that the facts occurred some twenty years ago. While for the war crimes committed by Van Anraat no limitation applied, ordinary tort actions are barred under Dutch law by limitation after a lapse of five years. A question that deserves attention is whether this narrow statute of limitations should also apply to civil claims that are fundamentally linked with war crimes. 10 The author acted as a lawyer representing the victims who joined as a civil party in the criminal proceedings against Van Anraat and in the separate civil proceedings for dam- ages. See District Court, The Hague, 24 April 2013, ecli:NL:rbdha:2013:BZ8333; Court of Appeal, The Hague, 7 April 2015, ecli:NL:ghdha:2015:725..
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