Dutch court rejects challenge to military member

Col. Thom Karremanns

A court in Arnhem yesterday rejected a request that a military judge be disqualified in a case seeking a criminal prosecution of Col. Thom Karremanns, the commander of the Dutch Battalion at Srebrenica, and two others. From the judgment:

Grounds of the objection 

In support of the recusal request -- in short -- the following arguments were presented. 

The details of this case require the application of Article 68, paragraph 3 of the Judicial Organisation Law to this specific case, in violation of Art. 6, ECHR. Applicants claim that the refusal of the prosecution to prosecute the accused is a direct result of too close involvement of the Ministry of Defence in the prosecution in this case. The Ministry of Defence should therefore not be re-involved with it to decide whether or not prosecution is required (in this case, by a military court).

The applicants' argument that the Ministry of Defence has interfered too much with this case is -- according to the applicants -- based on the following facts and circumstances: 

Firstly, the Ministry of Defence manipulated the facts in its favor, and has repeatedly knowingly chosen to ignore them and tell untruths; 

Secondly, there are indications that the Ministry of Defence caused evidence to disappear; 

Thirdly, the Ministry of Defence has interfered with the criminal investigation. For the applicants, it is too opaque or in the final stages influence was used to prevent a prosecution of the accused by the Ministry of Defence 

Counsel argued that the fact that military judges are appointed "in consultation with Our Minister of Defence" by Royal Decree makes them highly dependent on the Ministry of Defence and, in view of these facts and circumstances, they cannot judge the complaint impartially. In that regard, counsel referred to case law of the European Court of Human Rights. It is for this reason that they challenged the military member of the Chamber, Commodore R.R.H. Laurens. The aforementioned drawbacks, however, apply not only against him, but against any other military member. 

The applicants claim that the law and the nature of the complaint case, in the light of the requirements of Article 6 ECHR, contemplate this complaint, in derogation from the general rule in Article 68, paragraph 3 of the Judicial Organisation Law . . .

 Evaluation of the request for disqualification 

When evaluating an appeal based on a lack of impartiality of the court, it is paramount that a judge by virtue of his appointment must be presumed to be impartial. This is so unless exceptional circumstances provide compelling evidence that the court harbors a bias against a suspect, provided the applicant's existing fear is objectively justified. The question the Disqualification Chamber must answer is whether the circumstances cited by the applicants are supported by the necessary weighty evidence in this case. Where the Disqualification Chamber finds a request well founded, Article 68, paragraph 3 should be set aside in the particular case.

The case law of the European Court of Human Rights (ECtHR) has shown that the participation of military members does not conflict with judicial independence and impartiality, providing there are sufficient safeguards. As for Dutch military criminal law, the ECtHR in Engel and Others v Netherlands (1978, 223) considered the then existing High Military Court and found that, given the adequate safeguards, it was independent and impartial tribunal. This judgment was subsequently repeated by the ECHR in the Morris case against the United Kingdom (26 February 2002). Dutch military criminal law was integrated into general criminal law in 1991, as part of which the legislature declared the provisions related to judicial independence would apply to military members of the court. Particularly in view of the findings of the ECtHR in Engel and Others v Netherlands and Morris v United Kingdom, it can be assumed that the current composition of the Military Appeal Court in principle satisfies the ECHR and the ICCPR.

The main concerns complained about regarding the failure to prosecute three military officers who were part of Dutchbat III battalion which participated in a UN Peacekeeping Operation (UNPROFOR) in 1995 and was stationed in Srebrenica. The complainants in the main, who have also lodged the challenge, are relatives of persons who were killed on or shortly after July 13, 1995 by the Bosnian Serb army and allied paramilitary groups. They attribute the death of their relatives in part to the actions of the three accused Dutch officers. 

According to Article 68, paragraph 3 of the Judicial Organisation Law, the Military Chamber consists of two judicial officers charged with the administration and a military member and a military member who, according to Article 9 of the Act of 14 June 1990 laying down new rules on military criminal jurisdiction, is nominated by the Minister of Security and Justice in consultation with the Minister of Defence. 

The disqualification request relates to the military member of the Complaints Chamber, Commodore Laurens. However, the stated grounds for disqualification do not apply to circumstances which personally involve Commodore Laurens. The request rests on the fact that he is a Commodore in the Ministry of Defence in conjunction with the exceptional nature of the Srebrenica dossier in the service. The applicants argue that the military member, whoever it may be, should be disqualified because of the exceptional circumstances of the direct involvement of high-ranking military officers and the then Minister of Defence in defendants' actions, the intensive involvement of the Ministry of Defence with the determination of the facts to order a possible criminal investigation, and alleged influence over the prosecution by the top levels of the Ministry of Defence. 

The Disqualification Chamber of the court is aware that the present case is extraordinary. It not only involves very serious offenses, but to a considerable extent affects the appearance of the Dutch defense organization. It is perfectly understandable that complainants are unhappy about having a fellow military member serve. But all this is not enough for an objection. The military member of the Military Chamber of the court must be presumed to be impartial by virtue of his appointment. The applicants have not pleaded exceptional circumstances that constitute compelling evidence for the opinion that Commodore Laurens is biased against them or that their complainants concern is objectively justified. 

. . . This challenge is actually request that the case be decided otherwise than as provided by law. . . .  It is not an option for the Disqualification Chamber, even in light of Article 6 ECHR, to set aside statutory rules governing jurisdiction; the task of the Disqualification Chamber rather is confined to assessing the impartiality of individual judges. If the Disqualification Chamber were to grant this challenge and a regular chamber then recommend prosecution, the defendants could argue that the prosecution is inadmissible because the order command to prosecute was improperly made. The Disqualification Chamber considers it indeed conceivable that such an inadmissible situation could follow in this case. The risk of such complications -- which certainly would be extremely unfortunate for the applicants -- illustrates why the challenge should not be put to a use for which it is not intended. 

At the hearing the applicants made ​​an offer of proof, until hearing the prosecutors who have been involved in assessing the complaint against defendants made ​​by complainants concerned as well as by NIS reporter [name omitted]. However, this offer does not apply to facts or circumstances that concern Commodore Laurens. Therefore, the Disqualification Chamber declines that offer. 

It must be concluded that the request for disqualification of Commodore Laurens will be rejected. [Rough Google translation]

Editor's prediction: In the end the challenge will succeed if the case winds up at the European Court. Comments and contrary predictions are invited. (Of course, if the Complaint Chamber, with Commodore Laurens participating, overturns the prosecution's decision not to proceed with a prosecution, then the disqualification issue concerning him would seem to be moot.)