Genocide, Complicity in Genocide and International V. Domestic Jurisdiction: Reflections on the Van Anraat Case

Posted: 29 Feb 2008

Abstract

When adjudicating international crimes, domestic courts are faced with a choice between the application of international law or national law. In the recent van Anraat judgment, a Dutch District Court explicitly opted for the former alternative. This approach led to the accused's acquittal of complicity in genocide. In the Court's opinion, there was no proof beyond a reasonable doubt that van Anraat had actual knowledge of Saddam Hussein's special intent to destroy part of the Kurdish population. According to the Court, such proof is required under international law. This article argues that the Court's preference for international law was not prescribed, either by international law or by domestic law, although in principle such preference may prove advisable, whenever international rules are clear and exhaustive. After tracing the intricate legal discussions on mens rea requirements for genocide and complicity in genocide, the author concludes that the issue has not yet been completely elucidated in international case law and legal literature. In situations of ambiguity where international case law offers insufficient guidance, domestic courts would better resort to their own criminal law. As Dutch criminal law extends the mens rea of the accomplice beyond 'knowledge' so as to cover dolus eventualis as well, application of domestic law might have affected the outcome of the case.

Suggested Citation

van der Wilt, Harmen G., Genocide, Complicity in Genocide and International V. Domestic Jurisdiction: Reflections on the Van Anraat Case. Journal of International Criminal Justice, Vol. 4, No. 2, pp. 239-257, 2006, Available at SSRN: https://ssrn.com/abstract=915791

Harmen G. Van der Wilt (Contact Author)

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
727
PlumX Metrics