HR, 22-04-2025, nr. 22/04694 (Engels)

PROCURATOR GENERAL

AT THE

SUPREME COURT OF THE NETHERLANDS

Session 17 December 2024

ADVISORY OPINION

M.E. van Wees

In the matter of

[accused] ,

born in [place of birth] on [date of birth] 1990,

hereinafter: the accused.

The accused was sentenced to five years and four months imprisonment, with deduction of the time spent in pretrial detention, by judgment of the Court of Appeal of The Hague of 6 December 2022 for 2. "participation in an organisation that aims to commit terrorist crimes".1.

The appeal in cassation was filed by the Public Prosecution Service. On behalf of the Public Prosecution Service, H.H.J. Knol, advocate general at the public prosecutor’s office at the Court of Appeal, put forward two grounds for cassation. A cross-appeal in cassation was filed on behalf of the accused. T.M.D. Buruma and K.J. Zeegers, lawyers practising in Amsterdam, put forward three grounds for cassation.2.K.J. Zeegers also submitted a written defence on behalf of the accused.

2.

This case concerns the following. The accused came to Germany from Syria on 11 November 2015 to seek asylum. The accused left Germany on 7 December 2015. When the accused arrived in the Netherlands in October 2019, once again with the intention of seeking asylum, Dutch police received word from the German authorities that the accused was under an alert. The suspicion had arisen in Germany that the accused had been active as a fighter and regional leader of Ahrar al-Sham in Syria. A criminal investigation was subsequently initiated against the accused in the Netherlands. The Dutch police secured a video from the website known as YouTube on 9 October 2019.3.The Court of Appeal determined that the video first shows the logo of Ahrar al-Sham and that this video additionally contains footage of slain government soldiers surrounded by Ahrar al-Sham fighters. These fighters are shouting slogans, chanting and commenting on their own success and the defeat of the government soldiers. The slain soldiers are being verbally abused and insulted, and they are being spat at. One of the fighters is seen planting his foot on one of the bodies for a moment. The Court of Appeal ruled that the accused appears in this video as the man who is primarily speaking, calling the deceased fighters dogs and carcasses and moving his foot towards a body.

The first ground for cassation on behalf of the Public Prosecution Service contests the acquittal of the charge at Count 1, which – in short – states the accused is guilty of violating common Article 3 of the Geneva Conventions (hereinafter: the Conventions) in the case of armed conflict not of an international character, consisting of outrages on the personal dignity of the deceased soldiers (which can be seen in the video). The second ground for cassation on behalf of the Public Prosecution Service contests the partial acquittal of the accused with regard to the period referred to in the second charge.

The first ground for cassation proposed on behalf of the accused challenges the dismissal of the defence that the YouTube video is insufficiently reliable as evidence and must be excluded as evidence. The second and third grounds for cassation proposed on behalf of the accused relate to the declaration that the second charge has been proven.

The first ground for cassation proposed on behalf of the Public Prosecution Service

3.

This ground for cassation is directed against the acquittal of the first charge. The ground for cassation is divided into two subcomplaints. The first subcomplaint entails that the Court of Appeal's judgment that the established conduct is merely disrespectful, but does not constitute "outrages upon personal dignity" as referred to in Article 6(1)(c) of the International Crimes Act, demonstrates an incorrect interpretation of the law, or at least that that judgment, also in light of what the advocate general has put forward in that regard, is insufficiently reasoned. The second subcomplaint entails that the judgment of the Court of Appeal that (proving) "torture", as referred to in Article 1(1)(d) of the International Crimes Act requires a specific intent, demonstrates an incorrect interpretation of the law. Before I discuss these subcomplaints separately, I first want to present the indictment, parts of the closing speech of the Public Prosecution Service and the relevant holdings of the Court of Appeal.

Indictment, Public Prosecution Service written demand and the relevant holdings of the Court of Appeal

The charges against the accused at Count 1 are that:

"he, at one (or more) point(s) in time in or around the period from 1 March 2015 up to and including 27 April 2015, in or near Al-Ziyarah (Syria) and/or Hama (Syria), or at least somewhere (else) in Syria, either alone or jointly and in conjunction with (an)other person(s),

in the event of a non-international armed conflict within the territory of Syria, contrary to the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949, of one or more person(s) who were then not (or no longer) taking part in the hostilities directly, namely one or more civilian(s) and/or personnel of armed forces who had laid down their weapons and/or one or more person(s) who were placed hors de combat by sickness and/or wounds and/or detention, and/or any other cause,

committed outrage upon his/their personal dignity (and/or) (in particular) treated him/them in a humiliating and/or degrading manner,

because he, the accused and/or his co-perpetrator(s), while the aforementioned (deceased) person(s) were lying on the ground,

- stood and/or posed next to the aforementioned (deceased) person(s) and/or

- called the aforementioned (deceased) person(s) 'dogs' and/or 'carcasses of Al-Assad' and/or sang songs, and/or

- exhibited the aforementioned (deceased) person(s) and/or

- placed his foot on the body of the aforementioned (deceased) person(s) and/or

- kicked the body of the aforementioned (deceased) person(s) with his foot and/or

- spat on the body/bodies of the aforementioned (deceased) person(s) and/or

- had himself/herself filmed with one or more of the aforementioned (deceased) person(s) during the above action(s) and/or

- subsequently posted this video on social media, namely YouTube, and thereby (thus) distributed it and/or made it public;

According to the court record of the appeal hearing of 11 October 2022 the advocate general spoke in accordance with the notes stating the demand of the Public Prosecution Service submitted. These notes – in so far as relevant – include (copying and renumbering footnotes):

Article 6(1)(c) of the International Crimes Act criminalises the war crime of outrages upon personal dignity, particularly humiliating and degrading treatment.4.It is the transposition of Article 8(2)(c)(ii) of the Rome Statute. These articles are based on Common Article 35.of the Geneva Conventions of 1949.6.Common Article 3 is part of international humanitarian law, the set of rules that seeks to limit the humanitarian consequences of an armed conflict. The articles apply to armed conflicts not of an international character.

According to the Explanatory Memorandum to the International Crimes Act, the Dutch courts must study the relevant international law for the interpretation of the elements of the offence. This is provided in laws including the Rome Statute. The Elements of Crimes drafted on the basis of Article 9 of the Rome Statute assist the Court in the interpretation of the crimes.7.The Dutch courts must also study international case law, such as that of the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda.8.

As explained by this Court of Appeal in the Nashville case,9.the elements of the war crime "outrage upon personal dignity", or humiliating and degrading treatment, can be divided into six questions. In order to find the accused guilty of this war crime, the following questions must be answered affirmatively:

1. Did an armed conflicts not of an international character happen in Syria?

2. Was the accused aware of the factual circumstances that constitute the existence of the armed conflict?

3. Is the victim protected by international humanitarian law, and Common Article 3 in particular?

4. Was the accused aware of the facts and circumstances underlying the victim's protected status?

5. Did the accused commit outrages on the victim's personal dignity and/or humiliate and degrade the victim?

6. Are the accused's litigious actions and the aforementioned armed conflict linked?

(…)

Re 5: The accused committed outrages on the victim's personal dignity and/or humiliated and degraded the victim

Legal framework

The Elements of Crimes state:

"The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.”10.

The footnote to these Elements states that with regard to this crime, "persons" include dead persons.11.

The victim does not need to be personally aware of the existence of the humiliation or degradation or other violation. This provision is meant to protect unconscious or mentally disabled persons against deliberate humiliation.12.

Moreover, the relevant aspects of the victim's cultural background are taken into account.13.Therefore, an action that is humiliating to someone of a certain nationality, culture or religion, but may not necessarily be humiliating to others, is also part of the crime.14.

Outrages upon personal dignity can be committed against deceased people

Before addressing the substance of the crime, I want to review briefly how the Elements of Crimes were drafted. I do so in relation to the question of whether deceased persons can also be subject to outrages upon personal dignity. The Elements of Crimes were drafted by a preparatory committee ("PrepCom") comprising delegates of States.15.Underlying this was a study by the International Committee of the Red Cross (ICRC) regarding all war crimes. This study contains all relevant sources based on extensive research into and analysis of the tools of international humanitarian law and the relevant case law of international and national war crime trials16..17.

With regard to the war crime "outrages upon personal dignity", the ICRC stated that the offence is drafted in the same way for both armed conflicts of a national and an international nature.18.The ICRC referred to the M. Schmid case as relevant case law.19.In this case, the accused was convicted of mutilating a dead prisoner of war and refusing an honourable burial.20.The ICRC also referred to the T. Chuichi case. In this case, the accused was convicted of cutting the hair and beard of a prisoner of war and forcing him to smoke a cigarette. The prisoners of war were followers of the Sikh religion, which prohibits believers from cutting their hair or beards and from using tobacco.21.

In a ruling by the Bundesgerichtshof (27 July 2017, ECLI:DE:BGH:2017:270717U3STR57.17.0) referred to in the letter by the defence counsel dated 15 September 2022, the statement that the States did not agree on whether outrages upon personal dignity can also be committed against deceased persons was found speculative.22.In so far as this Court of Appeal, in spite of the Nashville judgment, had any doubts about this possibility, the Public Prosecution Service points out that the ICRC expressly referred to a case about a deceased prisoner of war with regard to this crime.23.The Public Prosecution Service argues that this demonstrates the importance of also giving protection to deceased persons.

Case law

The ICTY based its assessment of whether an outrage upon personal dignity exists, in part, on subjective criteria related to the victim's vulnerability. This includes the national, cultural or religious background of the person. Objective criteria related to the severity of the conduct are also relevant.24.This approach was also taken by the Court of Appeal in Nashville.25.With regard to the severity of the conduct, the ICTY ruled that the humiliation of the victim must be so intense that every reasonable person would be outraged by it.26.

Outrages upon personal dignity are often not isolated acts. The crime can be the result of a combination or accumulation of several acts which separately do not constitute an outrage upon personal dignity. The form, severity and duration of the violence and the intensity and duration of the physical or mental suffering serve as the basis for the assessment of whether crimes were committed.27.Where outrages upon personal dignity have been committed, these mainly concern acts, omissions or words which do not necessarily involve long-term physical harm, but are nevertheless serious crimes that must be criminalised.28.

In the recent case against Ongwen, the International Criminal Court reiterated the legal framework of outrages upon personal dignity.29.The suffering or injury is not required to have long-term consequences.30.

Following the ICTY case law, being forced to dance naked on a table also falls under the scope of such outrage.31.Such outrage also existed in the case where a victim's underwear was cut with a knife in public, so she was only wearing a blouse.32.The crime also includes inappropriate circumstances of confinement; being forced to commit submissive acts; being forced to relieve oneself while still clothed; or experiencing a continuous fear of being subjected to physical, mental or sexual violence.33.

The disrespectful treatment of bodies, the mutilation of bodies, the burial of bodies in mass graves and the digging up of bodies to cover up the crimes committed are qualified as crimes against humanity.34.The desecration of the remains of a body is also characterised as such.35.While the Public Prosecution Service is aware that crimes against humanity have a different purpose than war crimes, this demonstrates that these acts are also considered serious crimes of international concern.

Prosecution has also taken place at national level in several European countries for the war crime of outrages on the personal dignity of deceased persons.36.I of course particularly refer to your judgment of 26 January 2021, in which the accused posed with the deceased person and had a picture of himself and the deceased taken. The accused then posted this photo on Facebook and also sent it to someone.37.

The facts

The video shows several deceased persons covered in blood. Around them, people are singing and laughing, calling them dogs and al-Assad carcasses.38.The atmosphere emanating from the video is nothing short of disrespectful. The deceased persons are pointed at, people around them are posing and they are specifically included in the video on a regular basis. The men clearly feel superior and treat the deceased persons as inferior. The deceased persons are dehumanised and degraded.

It is important to not just select isolated actions from the video, but to look at the video as a whole. What would a reasonable person looking at the video think? It seems clear to me that they would feel outrage. The deceased persons are spat at from a short distance several times. At a certain point in time, a foot is placed on the body of one of the deceased. While no heavy kicking is involved, this is irrelevant in this case. Placing a foot on or moving a foot against the body of a deceased person is eminently humiliating and degrading, as if the bodies of the deceased persons are only worthy of being touched with the filthy sole of a shoe.

As is also clear from the demands of the Public Prosecution Service in the first instance and in the judgment, I also want to point to the cultural background of the deceased. Especially in Islamic culture, where showing the sole of your shoe to someone is a sign of utter disrespect, it is not hard to guess the reaction to placing the dirty sole of a shoe on a deceased person.39.

These humiliating and degrading actions by the accused and others are therefore – especially when considered together – of such a nature that they constitute outrages upon personal dignity."

In the contested judgment, the Court of Appeal held the following regarding the first charge, among other things (copying and renumbering footnotes):

"9. Considerations with regard to Count 1

Under Count 1, the accused is charged - in brief – with being guilty of committing the war crime of outrages upon personal dignity, in particular humiliating and degrading treatment. (…)

The Court of Appeal must first assess whether a non-international armed conflict exists within the meaning of CA 3 [Common Article 3 of the four Geneva Conventions; MvW]. Furthermore, an assessment is needed as to whether the victims are persons enjoying protection under CA 3 and whether the accused had knowledge of this status. An assessment will then be made as to whether the accused's conduct constitutes outrages upon personal dignity of the victims. Finally, there must be sufficient connection between the established conduct and the armed conflict (nexus). Here again, it is important that the accused had knowledge of the factual circumstances that had led to the existence of the conflict.

For the interpretation of the elements of the criminalisation of war crimes, the Court of Appeal is guided by international law, such as the Statute of the ICC and the Elements of Crimes drawn up on the basis of Article 9 of the Statute of the ICC, and guiding rulings by international tribunals, such as the ICTY, in view of the international character of the offence charged.40.

(…)

Outrages upon personal dignity

Legal framework

The prohibition of outrages on personal dignity, by (in particular) degrading and humiliating treatment, as charged under 1, is also enshrined in CA 3. This prohibition has been reaffirmed in the Additional Protocols and is considered to be valid customary international law. However, neither the Geneva Conventions nor the Additional Protocols define outrages upon personal dignity.41.

With regard to outrages upon personal dignity, the ICTY formulated the following definition in the Kunarac case:

"The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.”42.

In other words, the outrage may involve an intentional act but also an omission that has caused severe humiliation or otherwise a serious outrage upon human dignity. This assessment should consider subjective criteria, such as the victim's vulnerability, but also objective criteria related to the severity of the act.43.

The ICC Elements of Crimes consider the relevant aspect of the victim's cultural background.44.As a result, conduct that, for example, is degrading to someone of a particular nationality, culture, or religion, while not necessarily so to others, also falls within the scope of the concept of outrages upon personal dignity.45.This is a case-by-case assessment.46.

As with cruel or inhuman treatment, outrages upon personal dignity may consist of a single isolated act but may also result from a combination or accumulation of different acts which, taken individually, would not qualify as cruel or inhuman treatment. The Court of Appeal adopts what was determined by the ICTY in the Aleksovski case:

"The seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed."47.

As already established, the humiliation must be severe, but it is not a requirement that the outrage have lasting consequences.48.A fleeting act of misconduct may also be serious. Nor is special intent required, as is the case with torture.49.

The Court of Appeal only cited those elements of outrage upon personal dignity by humiliating and degrading treatment from case law that are relevant to the assessment of what the accused has been charged with in the present case. This is not an exhaustive enumeration.

Assessment by the Court of Appeal

The defence counsel has disputed the argument that the seriousness of the acts is sufficient to constitute - especially towards deceased persons - degrading or humiliating treatment affecting personal dignity. The Public Prosecution Service has argued that the acts - certainly when considered in combination with one another - were of such a nature as to constitute outrages upon personal dignity. In this regard, the Court of Appeal has ruled as follows.

Insofar as relevant here, video 1 shows that the government soldiers killed are surrounded by fighters of Ahrar al-Sham . They shout slogans, chant and comment on their own success and the defeat of the government soldiers in the battle of Al-Ghab . The soldiers killed are reviled and insulted. For a moment, one of the fighters puts his foot on one of the bodies. The accused moves his leg towards one of the bodies, and two persons spit in the direction of the bodies.

These acts by the fighters are extremely distasteful and demonstrate a disrespectful attitude towards the deceased soldiers. This does not necessarily mean that there has been an ‘outrage upon personal dignity, in particular humiliating and degrading treatment’ within the meaning of Article 6, paragraph 6 under c of the WIM [International Crimes Act]. The bar for that is higher. The Court of Appeal will elucidate this point.

Despite the deceased enjoying protection under CA 3, they cannot be said to be suffering severely physically or mentally. Furthermore, the video shows that the bodies and their uniforms remain virtually untouched. They appear to be shown as they were found. They are indeed depicted but not (and in contrast to in an earlier case that the Court of Appeal ruled on) displayed as trophies. The Court of Appeal further has considered the fact that the actions of the fighters summarised above last only a few minutes. The foot being placed on a body, the leg being moved, and the spitting take place once and twice respectively and always within a brief moment. One has to play the video several times to notice these actions. The fighters do not pay specific attention to this. Nor does the person filming. The emphasis is on celebrating victory at the expense of the deceased soldiers. All this detracts to some extent from the gravity of the fighters' behaviour.

Finally, the Court of Appeal considers that the interests of surviving relatives may also play a role in the question of whether an outrage upon personal dignity has taken place. In the current case, the file provides no information on this aspect; no indication as to whether the soldiers were recognised, or otherwise revealing anything about their identity or possible relatives. Therefore, the Court of Appeal cannot further consider the interests of surviving relatives in this case.

The conclusion is that the acts described are disrespectful, but in this case do not constitute ‘outrages upon personal dignity’, as explained against the background of inter alia authoritative statements by the ICTY."

Introduction to the legal framework

The first charge is based on violation of Article 6(1)(c) of the International Crimes Act.50.To the extent relevant, this article reads as follows:

“1. Any person who, in the event of non-international armed conflict, commits the offence of violating Common Article 3 of the Geneva Conventions, i.e. committing one of the following offences against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, of one of the following offences:

(…)

c. outrages upon personal dignity, in particular humiliating and degrading treatment;"

The party that put forward the ground for cassation opposes the Court of Appeal's interpretation of this penal provision. The Supreme Court has not had to rule on this before. I will therefore discuss in a bit more detail the background and history of this provision, the case law of international courts and tribunals and national foreign courts as well as the literature. As will be shown, I can broadly agree with the Court of Appeal's general assumptions. I will further address some more specific elements of the Court of Appeal's reasoning that there were no outrages upon personal dignity:

- the seriousness of the violation;

- the meaning of suffering of the victim;

- physical acts with the bodies of the deceased (or the lack thereof);

- the role of cultural aspects;

- the interests of surviving relatives.

No complaints have been formulated in cassation against the Court of Appeal's opinion that there can also be outrages on the personal dignity of deceased persons. However, this does not eliminate the need to ask the question of whether the assessment framework for deceased persons is the same as for living persons.

The International Crimes Act and the Statute of the International Criminal Court

According to the legislative history of the International Crimes Act, the Dutch offence definitions of international crimes were derived, usually verbatim, from the international instruments in which the offences are classified as a crime.51.Article 6(1)(c) of the International Crimes Act corresponds to Article 8(2)(c)(ii) of the Rome Statute of the International Criminal Court (hereinafter: the Statute).52.Both articles concern war crimes committed in an armed conflict not of an international character. Article 8(2)(c)(ii) of the Statute reads – as far as relevant:

“Article 8. War crimes

(…)

2. For the purpose of this Statute, “war crimes” means:

(…)

c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(…)

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;”53.

Article 5 of the International Crimes Act has a similar criminal offence for war crimes that are committed in an international armed conflict. Article 5(5)(j) of the International Crimes Act prohibits "misdeeds against personal dignity, particularly humiliating and degrading treatment". This criminal offence is based on Article 8(2)(b)(xxi) of the Statute, which also refers to "outrages upon personal dignity". According to Article 5(6)(b) of the International Crimes Act, an aggravating circumstance exists if the offence involves "violence against a dead person".

I would further like to point to Article 7 of the International Crimes Act. This article contains a catch-all provision in its first paragraph and criminalises all violations of the laws and customs of war not covered by Articles 5 and 6 of the International Crimes Act.54.The purpose of this catch-all provision is to ensure that war crimes that are not specifically defined and not included in the Statute do not go unpunished.55.According to Article 7(2)(b) of the International Crimes Act, a higher maximum penalty applies if such an offence also includes "misdeeds committed upon personal dignity, in particular humiliating and degrading treatment".

On the basis of Article 9 of the Statute, "Elements of Crimes" have been adopted as non-binding guidelines for the interpretation and application of Articles 6 to 8 of the Statute.56.The elements of Article 8(2)(c)(ii) are defined as follows in the Elements of Crimes:57.

“Article 8 (2) (c) (ii)

War crime of outrages upon personal dignity

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or

more persons.

2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.

3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

4. The perpetrator was aware of the factual circumstances that established this status.

5. The conduct took place in the context of and was associated with an armed conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.”

The footnote to the first point of Article 8(2)(c)(ii) of the Elements of Crimes states:

“For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.”

It follows from the legislative history of the International Crimes Act that the Dutch courts, when interpreting elements of offences and when defining the boundaries of criminal liability, must orient themselves to international law in this regard, as laid down in the Statute and the Elements of Crimes, among other things.58.The interpretation of the Statute, in turn, depends on the convention article or provision of customary international humanitarian law on which the relevant penal provision is based.59.This also follows from Article 21(1)(b) of the Statute.60.It clearly follows from both Article 8(2)(c) of the Statute and Article 6(1) of the International Crimes Act that the Geneva Conventions form the basis for the penal provision.

The Geneva Conventions and other international humanitarian law

Article 3 in each of the four Geneva Conventions is identical.61.The text of this common Article 3 reads, to the extent relevant:62.

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(…)

c) outrages upon personal dignity, in particular humiliating and degrading treatment;”63.

For a proper understanding of the meaning and scope of this provision, I state the following.

Article 3 is the only article in the Conventions that provides rules for armed conflict not of an international character. The article is the core provision of humanitarian treaty law for regulating armed conflict not of an international character and, as part of the universally ratified Conventions, is the only provision that is globally binding and regulates all non-international conflicts. The article is the result of a compromise reached during the negotiations prior to the Conventions between, on the one hand, States that felt that the rules to be drafted should provide as much protection as possible and, on the other hand, States that felt that international law could not provide rules for non-international conflicts. This compromise entailed that no specific rules were included for such conflicts, but the principles underlying the Conventions were declared applicable.64.

The principle underlying the article that personal dignity must not be outraged was subsequently recognised as a binding customary rule of international humanitarian law and is recognised as a "minimum yardstick" in all armed conflicts and a reflection of "elementary considerations of humanity".65.

It was subsequently established that under treaty and customary law, outrages upon personal dignity also entail individual criminal liability, even in the case of armed conflict not of an international character. The Conventions themselves have an obligation to criminalise "grave breaches" of certain provisions of the Conventions.66.This does not include common Article 3. However, in international humanitarian law, individual criminal liability may also arise from customary law.67.For common Article 3, this liability was accepted in a decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of The Prosecutor v. Tadic. The ICTY explained the conditions under which customary law establishes individual criminal liability (the Article 3 mentioned in the quote below is the article in the ICTY statute that determined its jurisdiction):

“The Appeals Chamber deems it fitting to specify the conditions to be fulfilled for Article 3 to become applicable. The following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article 3:

(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met (see below, para. 143);

(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious violation of international humanitarian law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

It follows that it does not matter whether the "serious violation" has occurred within the context of an international or an internal armed conflict, as long as the requirements set out above are met.”68.

The ICTY subsequently concluded:

“All of these factors confirm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.”69.

Some general comments on the concept of "personal dignity"

Neither the four Geneva Conventions nor the Additional Protocols to the Conventions provide a definition of "personal dignity". It is a form of human dignity, namely the human dignity belonging to the individual. The ICTY formulated it as follows in the case of The Prosecutor v. Furundžija:

“(…) The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person. (…)”70.

In the case of The Prosecutor v. Aleksovski, this was summarised as follows:

“A reading of paragraph (1) of common article 3 reveals that its purpose is to uphold and protect the inherent human dignity of the individual.”

"Human dignity" is sometimes seen as the source of human rights, as in the Universal Declaration of Human Rights of 10 December 1948 (hereinafter: the Universal Declaration).71.The Universal Declaration recognises the "dignity and worth" of human beings in its preamble and provides in Article 1, among other things, that all human beings are born free and equal in dignity and rights. It then lists a number of human rights. However, it does not become clear how these rights arise from this human dignity. This also applies to other human rights instruments. The normative content of this concept is thus limited and, according to some, the human dignity is defined precisely by what is formulated in the law as a violation of it.72.

Nevertheless, the concept of "personal/human dignity" can provide some direction. Both human rights and criminal law norms recognised in international humanitarian law are universal by their very nature and also interculturally recognised. This is, in Ambos' words, possible because it involves an "ethical minimum", namely the most serious violations of the most fundamental human rights.73.This suggests that the concept of "human dignity" is consistent with a general human experience and that an assault on it is obvious and evokes strong feelings of indignation and horror in everyone. Some cases to be found in case law are evocative in that respect, such as forcing someone to relieve themselves in their clothing or forcing a woman to dance naked on the table.74.How this has subsequently been operationalised in case law will be explained below, but I would note here that a criterion based on obviousness and general sentiment lends itself poorly to the precise delineation of cases necessary in criminal law.

From the fact that "humiliating and degrading treatment" according to common Article 3 constitutes a violation of personal dignity, it can be inferred that personal dignity is related to honour, self-esteem and equality, as also explicitly mentioned in Article 1 of the Universal Declaration. It seems to me that this cannot be separated from the autonomy a person has to act according to their own standards and beliefs. Its mirror image, the complete exercise of power over and subjugation of the other, is then a clear violation of personal dignity.

The interpretation of the concept of "personal/human dignity" is further complicated by the fact that it is a principle that underlies other norms and has also been substituted for certain other norms in common Article 3 for non-international conflict. This means that there is an overlap with these other norms, and the early case law of international tribunals therefore shows that people are charged with outrages upon personal dignity instead of or in addition to more specific criminal provisions.75.This then says little about the meaning of personal dignity and outrages upon personal dignity on its own.

Human dignity as an innate and inherent, i.e. unearned and imperishable,76.aspect of every human being further means that it cannot be affected by the behaviour of the person involved. This is of particular importance in the law of war, in which personal dignity is thus vested fully in the "enemy", even if, moments before, that enemy threatened the lives of those who must now respect the enemy's dignity. Incidentally, this also means that nothing about the "enemy" can increase the right to respect their personal dignity. I will be coming back to this.

Lastly, I will address an issue on which there are different views in the literature, namely the violation of personal dignity as one of the manifestations of the principle of "humane treatment".

Common Article 3(1) contains the obligation for persons who do not (or no longer) participate in combat operations to "be treated humanely". To this end, a number of acts are prohibited, such as outrages on human dignity as mentioned under (c).77.Arnold78.agrees with this hierarchy. He calls humane treatment the Leitmotif of the Conventions, which helps flesh out the concept of "outrages upon personal dignity". Personal dignity should therefore be considered partly in conjunction with Article 27 of the Fourth Convention:

“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”

In contrast, Sivakumaran79.and, following suit, Andersson,80.argue that while "inhumane treatment" and "outrages upon personal dignity" are related, they are still different concepts. Inhumane treatment concerns physical and mental integrity and requires the victim to experience a certain degree of suffering. By contrast, outrages upon personal dignity involve matters such as honour, dignity and self-respect. I note here that even if this distinction is assumed, Article 27 of the Fourth Convention may still provide starting points for the interpretation of these concepts.

In summary, it can be said that personal dignity as a form of human dignity is a relatively undefined concept in theory and normal usage and has been used as a compromise in the Geneva Conventions for that very reason.81.Nevertheless, it corresponds to a general human intuition and in the system of international humanitarian law there are starting points for a further legal interpretation of the concept.

Below, I will discuss the case law of international and national courts that have ruled on "outrages upon personal dignity". These are the ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and the permanent International Criminal Court (ICC). The interpretation of national courts outside the Netherlands can also be considered in this regard.82.Before doing so, I will first discuss the meaning of the term "serious", which plays a role in this doctrine and in the contested judgment in several places.

Degree of violation of personal dignity

Notable in the judgment is the passage where the Court of Appeal derives a rule from the ICTY decision in the Kunarac case. The Court of Appeal wrote: "In other words, the outrage may involve an intentional act, but also an omission, that caused serious humiliation or otherwise an “ernstige aanranding” (“serious outrage”) on human dignity." (emphasis added; MvW). In doing so, the Court of Appeal stated that an outrage upon personal dignity only exists if the outrage is "serious". This seems to set a higher threshold for punishability than prescribed by the law. While I understand that this is a somewhat unfortunate translation of the quote of the ICTY preceding this passage, I would still like to examine what the wording of laws and conventions says about the degree of violation of personal dignity required to constitute an "outrage".

In this context, it is worth bearing in mind that different Dutch words have been used in the official translations of "outrages". Even the International Crimes Act has two. Article 6(1)(c) of the International Crimes Act mentions "aanranding" ("outrages"), while Article 5(5)(j) of the International Crimes Act refers to "wandaden" ("misdeeds"). This difference seems to be due to the translations of the underlying conventions. The translation of the Geneva Conventions, to which Article 6(1)(j) of the International Crimes Act explicitly refers, uses the word "aanranding".83.By contrast, the translation of the Statute uses the word "wandaden".84.Interestingly, the term "outrages" is translated as "aanslagen" ("assault") in Article 75(2)(b) of the First Additional Protocol to the Geneva Conventions.85.

In Dutch, "wandaden" ("misdeeds") and "aanslagen" ("assault") have a more serious connotation than "aanranding" ("outrages"). According to the Van Dale dictionary, a "wandaad" is an "evil, inhumane, barbaric act" (emphasis added; MvW) and an "aanslag" is often associated with violent offences that inflict severe harm. About "aanranden", Van Dale says: "to attack, injure, assault with criminal intent". In English, an "outrage" is defined as "shocking, morally unacceptable and usually violent action".86.

The German Völkerstrafgesetzbuch criminalises treating a protected person "in schwerwiegender Weise entwürdigend oder erniedrigend". (emphasis added; MvW). In Sweden, according to Article 4(7) of the Lagen om straff för folkmord, brott mot mänskligheten och krigsförbrytelserhet, the person who "subjects a protected person to humiliating or degrading treatment which is considered to seriously violate their personal dignity if the act is part of or otherwise connected with an armed conflict or occupation" is punishable (emphasis added; MvW).87.This is possibly related to the aforementioned element of the Elements of Crimes, implying that the humiliation, degradation or other violation must be sufficiently severe ("severity (...) of such degree") to qualify as an outrage upon personal dignity. It is notable that both offences focus not on the outrage upon personal dignity, but on the degrading and humiliating treatment mentioned in common Article 3 as a (significant) manifestation of that outrage. For both offences, the degrading and humiliating treatment must be "severe". This corresponds to the "severe humiliation" the Court of Appeal refers to in the contested judgment, but does not say that the violation must also be severe.

In contrast, the Belgian Criminal Code, in Article 136c § 2 under 2, speaks of the "aantasting (“violation”) of personal dignity, in particular humiliating and degrading treatment/les atteintes à la dignité de la personne, notamment les traitements humiliants et dégradants". This is broadly in line with the text of the International Crimes Act, on the understanding that an "aantasting" has a more neutral connotation than "aanranding".

In this regard, I return to what I wrote at 3.16 above regarding the circumstances in which the violation of a rule of international humanitarian law also entails individual criminal liability. One of the conditions for this is: "the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim". Thus, the primary issue is not the extent of the violation but the legal interest to be protected and the consequences for the victim. Whatever the case may be, by accepting that "outrages upon personal dignity" entail individual criminal liability, the requirement is met as a given.88.This can also be inferred from the opening words of Article 8(2)(c) of the Statute. This Article provides that the "serious violations" of common Article 3 are criminalised, "namely" the outrage upon personal dignity. The "outrage" is already punishable, it does not have to be a "serious outrage".

I therefore conclude that it follows from the wording and context of the penal provision that an outrage upon personal dignity only exists if the violation in question is sufficiently serious, but that in order to meet the definition of the offence, it is not required that the outrage itself is also serious. That said, I understand that by “ernstige aanranding” ("serious outrage"), the Court of Appeal intended to provide a translation of "serious attack". In order to distinguish the term from “aanranding” ("outrage"), it might have been better to opt for the translation “ernstige aanval”("serious attack") or “aanslag” ("assault").

Development in the case law of international tribunals

I first refer to the quote from the case of the Trial Chamber of the ICTY The Prosecutor v. Furundžija89.included at 3.17 above, as the first of a series of judgments by international tribunals on "outrages upon personal dignity". In the interpretation given there of the criminalisation of outrage upon personal dignity, meaning can also be attributed to physical and mental harm to the victim: "unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person". It should be noted here that the charges implied that the victim's personal dignity had been outraged, including by rape (para. 38; an example of the concurrence of the "outrages" mentioned at 3.21 above with a norm that has since also been independently criminalised).

In the case of The Prosecutor v Aleksovski, the Trial Chamber of the ICTY held that the central issue in assessing whether an act can be classified as an "outrage upon personal dignity" is not so much the harm as the ongoing suffering of the victim. Since suffering is largely subjective, a corrective objective criterion was also formulated, namely whether the average person would be "outraged" upon learning of the fact. The latter is in line with the general human feelings that serve as a measure of violation of human dignity mentioned at 3.19 above. In that regard, the Trial Chamber held, inter alia, the following (footnotes omitted):

“54. An outrage upon personal dignity within Article 3 of the Statute is a species of inhuman treatment that is deplorable, occasioning more serious suffering than most prohibited acts falling within the genus. It is unquestionable that the prohibition of acts constituting outrages upon personal dignity safeguards an important value. Indeed, it is difficult to conceive of a more important value than that of respect for the human personality.

(…)

56. An outrage upon personal dignity is an act which is animated by contempt for the human dignity of another person. The corollary is that the act must cause serious humiliation or degradation to the victim. It is not necessary for the act to directly harm the physical or mental well-being of the victim. It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule. The degree of suffering which the victim endures will obviously depend on his/her temperament. Sensitive individuals tend to be more prone to perceive their treatment by others to be humiliating and, in addition, they tend to suffer from the effects thereof more grievously. On the other hand, the perpetrator would be hard-pressed to cause serious distress to individuals with nonchalant dispositions because such persons are not as preoccupied with their treatment by others and, even should they find that treatment to be humiliating, they tend to be able to cope better by shrugging it off. Thus, the same act by a perpetrator may cause intense suffering to the former, but inconsequential discomfort to the latter. This difference in result is occasioned by the subjective element. In the prosecution of an accused for a criminal offence, the subjective element must be tempered by objective factors; otherwise, unfairness to the accused would result because his/her culpability would depend not on the gravity of the act but wholly on the sensitivity of the victim. Consequently, an objective component to the actus reus is apposite: the humiliation to the victim must be so intense that the reasonable person would be outraged. (…)

57. Indeed, the seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed. In other words, the determination to be made on the allegations presented by the victims or expressed by the Prosecution largely rest with the analysis of the facts of the case.”90.

The case of The Prosecutor v. Musema91.is interesting because the Trial Chamber of the ICTR addresses the terms "humiliating and degrading treatment". The ICTR links this to the victim's self-respect, implying that the victim must be aware of it. I note in this regard that Musema was suspected of attacking, killing and raping refugees.

“a) Humiliating and degrading treatment: Subjecting victims to treatment designed to subvert their self-regard. Like outrages upon personal dignity, these offences may be regarded as a lesser forms of torture; moreover ones in which the motives required for torture would not be required, nor would it be required that the acts be committed under state authority.”

In the case of The Prosecutor v. Kunarac, the Trial Chamber of the ICTY addressed these holdings from the Aleksovski case and reached a different opinion regarding the requirement of "lasting suffering". Moreover, it clearly states that in addition to causing suffering, humiliation can also constitute an "outrage", whereas in Aleksovski it was held that humiliation also had to result in suffering. Furthermore, the test of whether the "reasonable man" would be outraged was disregarded. Instead, the criterion becomes whether the act in question would generally be regarded as something that would cause humiliation or degradation, or constitute a serious attack on human dignity. The test becomes more abstract. In that regard, the Trial Chamber considered the following, among other things (footnotes omitted):

“501. Insofar as this definition provides that an outrage upon personal dignity is an act which “cause[s] serious humiliation or degradation to the victim”, the Trial Chamber agrees with it. However, the Trial Chamber would not agree with any indication from the passage above that this humiliation or degradation must cause “lasting suffering” to the victim. So long as the humiliation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be “lasting”. In the view of the Trial Chamber, it is not open to regard the fact that a victim has recovered or is overcoming the effects of such an offence as indicating of itself that the relevant acts did not constitute an outrage upon personal dignity. Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.

(…)

503. This reinforces the key aspect of the definition of the actus reus of the offence of outrages upon personal dignity, as set out by the Trial Chamber in the Aleksovski case – that the relevant act or omission must cause serious suffering or humiliation. The absence of any suggestion that the suffering caused by the inhuman treatment must have a lasting quality confirms the Trial Chamber’s conclusion that there is no such requirement in relation to the offence of outrages upon personal dignity.

(…)

514. In the view of the Trial Chamber, the offence of outrages upon personal dignity requires

(i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and

(ii) that he knew that the act or omission could have that effect.”92.

Finally, I cite the most recent case, namely the ICC's decision in the case of The Prosecutor v. Al Hassan of 26 June 2024.93.The ICC held as follows with regard to the "outrages upon personal dignity" as referred to in Article 8(2)(c)(ii), with reference to the Elements of Crimes, (footnotes omitted):

“1152.The question of whether the ‘severity’ of the humiliation, degradation or violation is ‘generally recognized’ as an outrage upon personal dignity involves a reasonable person’s objective assessment and must be assessed on a case-by-case basis. This objective component has been defined as requiring that the ‘humiliation to the victim must be so intense that the reasonable person would be outraged’. It is not necessary to prove that the suffering or injury must have long term effects.

1153.The Chamber notes that the Court’s legal framework does not provide a definition of a conduct that humiliates, degrades or otherwise violates someone’s dignity or an ‘inhumane treatment’. The jurisprudence of this Court and international judicial institutions has established that the following acts constitute outrages upon personal dignity: rape, hanging naked female prisoners from handcuffs or forcing them to maintain a certain position for a long time, young women being forced to dance naked on a table while the accused watched, a female student being undressed and forced to do gymnastics in a public courtyard, the use of detainees as human shields or making them dig trenches, and forcing detainees to, inter alia, relieve themselves in their clothing.”

Here, the ICC formulates the test differently again.94.It again puts the general conceptions first, but now, in line with point 2 of the Elements of Crimes (see at 3.10 above), it relates them to the degree ("severity") of the violation of personal dignity and then fills it in with the presumed "outrage" of the reasonable person. This in turn is related to the "suffering or injury". Subsequently, instead of arriving at a more specific definition, the Court of Appeal goes no further than listing behaviour that has previously been recognised as an "outrage". If you then look at what the ICC characterised as an outrage upon personal dignity in the Al Hassan case (paras. 1388-1400), it is as follows:

- giving violent punishment in public;

- poor detention conditions visible to others;

- a forced marriage without using the proper rituals and

- a public amputation and subsequent social exclusion.

In this regard, the ICC also considered the person of the victim (old or young) as well as the emotions, shame and physical, psychological and social consequences experienced by the victims.95.

When looking at the aforementioned case law, two issues stand out. First, that the international tribunals also seem to have difficulty in giving further substance to "outrages upon personal dignity". Whereas attempts were first made to flesh this out particularly by looking at the victim's suffering, the objective test, which was first formulated as a corrective to the subjective test, has taken an increasingly central role. In doing so, however, judges have varying perspectives of and attribute different objects to this objective test.

The second thing that stands out is that the international tribunals have not yet ruled on "outrage upon personal dignity" in deceased persons, and that the criteria formulated so far are also difficult to apply to these cases. This applies in any event to the subjective test. After all, a deceased person cannot suffer, or suffer mental injury, feel pain, shame or trauma. There are different ways of looking at the vulnerability of a deceased person. On the one hand, a deceased person is completely defenceless; on the other hand, the aspects in which they can be hurt are greatly reduced.

One could fill in the subjective element by answering the hypothetical question of what the deceased person would have experienced, but it seems to me that the hallmark of a subjective test is precisely the actual experience of the affected person themselves.

That leaves the objective test. The objective test is still useful in itself, but will have a different interpretation because the cause of an "outrage" in case of an outrage upon personal dignity of a living person differs from the cause of such for a deceased person. Another question that can be asked is whether the absence of a subjective element in the assessment of the outrage upon personal dignity means that such outrage is less likely to be assumed. Or does the fact that it involves a deceased person instead make outrage more likely? To answer this question, I will elaborate on the personal dignity of deceased persons and their protection under international humanitarian law. […]

Protection of the deceased and the outrage on their personal dignity

Although, it bears repeating, the issue in cassation is not whether outrage upon personal dignity can also be committed against a deceased person,96.the development that led to this rule and the otherwise existing system of prohibitions and duties of care in relation to deceased persons may clarify when this is the case.97.

Respect for the dead, including on the battlefield, was already recognised as an important value in ancient98.and Old Testament99.times and is part of traditions including the Jewish100., Christian101.and Islamic102.traditions.

As early as the 19th century, the law of war provided rules against robbing and maiming killed soldiers. In addition, obligations based on conventions have emerged that require these deceased people to be identified and buried.103.Later, Article 3 of the 1906 Geneva Convention104.obliged the State in control of the battlefield after the battle to protect the dead from being robbed and mistreated. These rules have also been adopted in Dutch military criminal law.105.Article 76(3) of the 1929 Geneva Convention106.required that deceased prisoners of war be "honourably buried".

The 1949 Geneva Conventions and the additional protocols also contain regulations of this nature.107.Of these, I mention here Article 17 of Convention I, which states that parties must "ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected". Article 34 of the First Additional Protocol prescribes that of those who died due to occupation or hostilities, not only the grave will be respected, but also the bodily remains themselves. Article 8 of the Second Additional Protocol contains the obligation to protect corpses from mutilation and to "decently dispose of them".

From this multitude of international and national rules, the conclusion has been drawn that these are also rules of customary international humanitarian law. Rules 113 and 115 of the authoritative study by the International Red Cross and the explanatory notes thereto read as follows:

“113. Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.

(…)

The prohibition of mutilating dead bodies in non-international armed conflicts is covered by the war crime of “committing outrages upon personal dignity” under the Statute of the International Criminal Court, which according to the Elements of Crimes also applies to dead persons (…)”

en

“Rule 115. The dead must be disposed of in a respectful manner and their graves respected and properly maintained.

(…)

It may be said that this rule reflects a general principle of law requiring respect for the dead and their graves.”

In this development of the duty of care for the dead, a progression can be seen from an originally technical matter, necessary to continue waging war, to a human duty that is ultimately no longer grounded in a need of the survivors, but in the dignity of the deceased themselves.108.It is in line with the latter that the aforementioned Rule 113 states that mutilating a corpse is an "outrage upon the personal dignity" of the deceased. It ultimately led to the dead being equated with the living in the Elements of Crimes with regard to "outrages upon personal dignity" (see under 3.11).109.Incidentally, this does not mean that the dead themselves have rights, but rather that they deserve protection.110.

The question then arises whether this protection of personal dignity goes beyond the original treaty norms concerning the dead. The clearest of these norms are the prohibition on robbery and mutilation of bodies. However, a deceased person can also be humiliated or dishonoured in other, non-physical ways. Such treatment is the opposite of fulfilling the duty of care to bury the deceased "honourably" or "decently" while performing all rituals that were important to the deceased.111.

The Bundesverfassungsgericht, not with a view to international humanitarian law, focused the protection of the human dignity of the deceased precisely on the non-physical acts towards them:

“...Zwar endet die in Art. 1 Abs. 1 GG aller staatlichen Gewalt auferlegte Verpflichtung, dem Einzelnen Schutz gegen Angriffe auf seine Menschenwürde zu gewähren, nicht mit dem Tode (vgl. BVerfGE 30, 173 <194>). Postmortalen Schutz genießen vielmehr der allgemeine Achtungsanspruch, der dem Menschen kraft seines Personseins zusteht, aber auch der sittliche, personale und soziale Geltungswert, den die Person durch ihre eigene Lebensleistung erworben hat (vgl. BVerfGK 9, 93 <96>). Dies soll den Menschen über seinen Tod hinaus vor Erniedrigung, Brandmarkung, Verfolgung oder Ächtung bewahren. Es schützt ihn davor, in einer die Menschenwürde verletzenden Weise ausgegrenzt, verächtlich gemacht, verspottet oder in anderer Weise herabgewürdigt zu werden (vgl. BVerfGE 1, 97 <104>).”112.

Going back to what I wrote at 3.20 above, it could be argued that in the case of deceased persons, such an "Erniedrigung" or "Ächtung" can be quickly assumed and even that in the process, a violation of the personal dignity of the deceased quickly enters the picture. I argued there that personal dignity is related to honour and equality, among other things, and that complete exercise of power and submission constitutes a clear violation of personal dignity. As for the latter, a deceased person cannot put up a defence, so that it quickly involves complete exercise of power. With regard to the former, a violation of honour and equality can be committed not only in the case of non-physical, explicitly degrading words or actions, but also already by failing to observe the treaty or universal human duty of care, respect for the dead. Although the "reasonable person" is not likely to believe that a dead person deserves more protection than a living person, death and the dead have a special, distinctive meaning for him or her that evokes a need for protection.

Yet many cases in which the accused are prosecuted in national courts for "outrages upon personal dignity" involve the mutilation of a corpse. According to an overview published by Eurojust in 2018,113.these are almost always accused persons shown in images with such corpses or with body parts cut off.114.

The reason may lie in the "severity" required by rule 2 of the Elements of Crimes: "The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity." (See 3.34 above). Andersson observed that acts related to physical desecration of corpses "[are acts] of the severity that they would generally be considered as outrages to the ordinary person", while in the case of the living persons, a broader spectrum of acts (and omissions) leads to the judgment that there have been outrages upon personal dignity, including degrading statements. She then questions whether the threshold for establishing outrage is higher for the dead than for the living. However, she sees no basis for this in the law or in case law, while the Elements of Crimes do not make this distinction. However, she does state the following: “What is generally considered as an outrage by the reasonable person may though possibly depend on whether it is directed against a living person or a dead person”. Insulting and degrading statements may then lead to an outrage upon personal dignity, but only in circumstances that are also otherwise degrading.115.

Some examples of national case law

Two judgments by national courts can also be interpreted this way; one by the Swedish Högsta Domstolen and one by the German Bundesgerichtshof. The former, which is the highest court in Sweden, held the following, among other things, in a decision of 5 May 2021:116.

“30. The mere fact that someone in a photograph or film of, or relating to, a battlefield appears together with a dead protected person need not entail that such humiliating or degrading treatment has occurred as can constitute a serious violation. It requires that the circumstances contain additional debasing or demeaning elements. For example, it can involve the mutilation, collection, arrangement or handling of the deceased in a demeaning or offensive way. It can also be the case that they are presented as trophies in a photograph or film as part of the opposing side’s war propaganda.”

(…)

The assessment in this case

(…)

40. The question is then whether the relevant photographs and the film depict acts which entail that the deceased persons were subjected to such humiliating or degrading treatment as was calculated to seriously violate the victim’s personal dignity.

41. The photographs referred to in counts 1 and 2 of the statement of the criminal act as charged show KBHS [the accused; MvW] standing with other persons next to the deceased, whose bodies are without hands (count 1) or head (count 2).

42. In the photograph of the deceased without hands, one sees KBHS close to two other persons who have placed their feet on the body of the deceased. KBHS leans forward and holds his hands against a tree so that it is a group photograph in which the three together pose with the deceased, which creates the impression that the victim is a quarry or a trophy which they willingly desire to show to the world. The placement of feet on the victim clearly enhances the impression of a humiliation.

43. As regards the photograph which shows a body without a head, KBHS stands in a group together with two other persons in which the person in the middle holds the shoulders of the other two. The situation, in a comparable way, creates the impression of a trophy event to be exhibited for the world.

44. The offences in counts 1 and 2 have entailed that the dead persons have been subjected to humiliating or degrading treatment which was calculated to seriously violate personal dignity.

45. The film and the photograph referred to in count 3 of the statement of the criminal act as charged shows a dead person laying on the ground whose face is bloodied and deformed. In the film, one can see how someone rests a rifle barrel on the deceased’s body, that someone spits on the face of the deceased and that someone is kicking the deceased’s body. It is apparent from the sound on the film that the deceased is denigrated with abusive speech. It may also be observed in the photograph and film how KBHS sits on the ground close to the deceased at the same time as the deceased is subjected to offensive treatment. The offence in count 3 of the indictment thus entails that the deceased has been subjected to humiliating or degrading treatment which was calculated to seriously violate personal dignity.

46. The photograph in Section 4 shows how KBHS and another person pose next to a dead person on the ground and in which both have a foot placed on the deceased’s body. The placement of their feet on the victim clearly enhances the impression of a humiliation. Also this event has entailed that the victim was subjected to a humiliating or degrading treatment which was calculated to seriously violate personal dignity.”

A Bundesgerichtshof judgment of 27 July 2017117.involved an accused convicted of outrages upon personal dignity for posing with the heads of two slain opponents impaled on stakes. After first holding that an act referred to in the applicable penal provision118.need not in itself consist of a physical impact on the victim119., the Bundesgerichtshof continued as follows:

“b) Die entwürdigende und erniedrigende Behandlung der getöteten Soldaten durch den Angeklagten war auch schwerwiegend im Sinne von § 8 Abs. 1 Nr. 9 VStGB.

aa) Nach der Intention des Gesetzgebers sollen durch die Formulierung "in schwerwiegender Weise" insbesondere "Beleidigungen von nur geringer Schwere" vom Anwendungsbereich des Tatbestands ausgenommen werden (BT-Drucks. 14/8524, S. 28). Dieses Merkmal bedarf indes im Hinblick auf den Verbrechenscharakter des § 8 Abs. 1 Nr. 9 VStGB und die damit verbundene Mindeststrafandrohung von einem Jahr Freiheitsstrafe vor dem Hintergrund des verfassungsrechtlichen Gebots schuldangemessenen Strafens einer einschränkenden Auslegung.

Der Ansatzpunkt dafür ergibt sich aus der englischsprachigen Originalfassung der Art. 8 Abs. 2 Buchst. b (xxi) und Buchst. c (ii) IStGH-Statut, an der sich § 8 Abs. 1 Nr. 9 VStGB nach dem Willen des Gesetzgebers orientiert. Dort wird im Zusammenhang mit der als Kriegsverbrechen erfassten entwürdigenden und erniedrigenden Behandlung jeweils der Begriff "outrage" verwendet. Dieser Begriff lässt sich als "Frevel(tat)", "Gräuel(tat)" bzw. "Ungeheuerlichkeit" übersetzen (vgl. https://de.langenscheidt.com/englisch-deutsch/outrage). Als Kriegsverbrechen erfasst das IStGH-Statut mithin nur solche entwürdigenden oder erniedrigenden Behandlungen, welche die Würde des Betroffenen in solchem Ausmaß verletzen, dass die betreffende Tat als Gräueltat anzusehen ist (so auch Werle/Jeßberger, aaO Rn. 1238). Ausschlaggebend ist insoweit ein objektiver Maßstab (Werle/Jeßberger, aaO mwN), bei dem - wie sich aus den Verbrechenselementen ergibt (vgl. Verbrechenselemente zu Art. 8 Abs. 2 Buchst. b (xxi), Ziffer 1 Fn. 49; zu Art. 8 Abs. 2 Buchst. c (ii), Ziffer 1 Fn. 57) - der kulturelle Hintergrund des jeweiligen Opfers zu berücksichtigen ist (MüKoStGB/Zimmermann/Geiß, aaO Rn. 202).

Dementsprechend ist auch der Anwendungsbereich des § 8 Abs. 1 Nr. 9 VStGB auf solche Taten zu beschränken, durch welche die Würde des Betroffenen in einem Ausmaß verletzt wird, dass sich die Tat aus der Sicht eines objektiven Beobachters unter Berücksichtigung des kulturellen Hintergrundes des Opfers als Gräueltat darstellt. Dem Wortsinn entsprechend (vgl. dazu https://de.wikipedia.org/wiki/Gräuel) ist das der Fall, wenn das Verhalten des Täters grauenhaft bzw. grauenerregend erscheint.

Dies kommt im Zusammenhang mit der entwürdigenden oder erniedrigenden Behandlung Verstorbener vor allem bei Verstümmelungen oder anderen körperlichen Einwirkungen in Betracht (vgl. RStGH, Urteil vom 18. Dezember 2008 - Bagosora u.a., ICTR-98-41-T, Nr. 2219, 2222; vgl. ferner Urteil vom 14. Dezember 2011 - Bagosora u.a., ICTR-98-41-A, Nr. 729). Bloße Beschimpfungen, Beleidigungen oder sonstige nicht mit physischer Einwirkung verbundene entwürdigende oder erniedrigende Behandlungen Verstorbener sind demgegenüber grundsätzlich nicht geeignet, als Gräueltat angesehen zu werden. Etwas anderes kann nur gelten, wenn ein derartiges Verhalten ausnahmsweise gleichermaßen grauenhaft bzw. grauenerregend erscheint wie eine durch körperliche Einwirkung begangene Gräueltat.

bb) So verhält es sich indes hier.

Das Verhalten des Angeklagten, sich mehrfach in einer Pose, die Überlegenheit und Gnadenlosigkeit vermittelte, in unmittelbarer Nähe zu den abgetrennten, auf die Metallstangen gespießten und quasi als Trophäen zur Schau gestellten Köpfen der Soldaten fotografieren zu lassen, knüpfte an deren vorangegangene entwürdigende und erniedrigende Behandlung an, die in dem Aufspießen ihrer Köpfe und deren Zurschaustellung vor der Schule bestand. Die Leichname nicht beizusetzen oder an den Gegner zu überstellen, sondern stattdessen deren Köpfe auf Metallstangen aufzuspießen und öffentlich als Trophäen zu präsentieren, stellte fraglos eine schwerwiegende entwürdigende und erniedrigende Behandlung der Getöteten dar.

Gleiches gilt auch für das an die Zurschaustellung der aufgespießten Köpfe anschließende, selbst nicht mit körperlicher Einwirkung verbundene Verhalten des Angeklagten. Er hat die durch die vorangegangene Behandlung der Opfer geschaffene, diese außerordentlich entwürdigende Situation genutzt, um deren erniedrigende Behandlung weiter zu vertiefen. Sich in unmittelbarer Nähe zu den aufgespießten und zur Schau gestellten Köpfen in einer Pose fotografieren zu lassen, die Überlegenheit und Gnadenlosigkeit vermittelte, erscheint aus der Sicht eines objektiven Betrachters unter Berücksichtigung des kulturellen Hintergrundes der Opfer nicht minder grauenerregend als das Aufspießen und die Zurschaustellung der Köpfe. Denn der Angeklagte demonstrierte damit, dass ihn der entwürdigende Zustand der Opfer nicht zu Anteilnahme oder Scham veranlasste. Indem er sich alleine sowie gemeinsam mit V. und der unbekannten Person mit den abgetrennten und aufgespießten Köpfen in Szene setzte, brachten er und seine Mittäter vielmehr zum Ausdruck, dass ihnen die Köpfe als bloße Trophäen dienten, mit denen sie sich schmückten. Es ist insoweit bei objektiver Betrachtung ohne Bedeutung, dass der Angeklagte nicht zugleich körperlich auf die Opfer eingewirkt hat.”120.

Similar reasoning can be found in the judgment of the Court of Appeal of The Hague of 26 January 2021:

Assessment by the Court of Appeal

Figure 1 shows a deceased and bloodied man in orange overalls hanging from a cross standing by the roadside. The circumstance that the deceased was not buried but was displayed in this manner automatically constitutes an outrage upon personal dignity.

The Court of Appeal must assess whether the accused's conduct – namely, posing for the photo with the deceased and distributing that photo – constitutes outrages upon personal dignity.

By posing next to the deceased person and making a photograph or having a photograph taken, the accused contributed to the further humiliation and/or degradation of the deceased. In doing so, the accused expressed that the body of the deceased should be regarded as a trophy and that he was superior to the deceased. That humiliating and/or degrading conduct is of such a serious nature that it is automatically regarded as outrage on the personal dignity of the deceased person. By subsequently posting the picture on his Facebook account, the accused ensured that a large number of people were given the opportunity to learn about the picture. Through these actions, along with the fact that he himself posed for the photograph and had it taken, he further continued the outrage on the personal dignity of the deceased person."121.

Before coming to a concluding consideration of this legal framework, I turn to two other possible aspects of the outrage upon personal dignity: the surviving relatives and the cultural context.

The surviving relatives

It seems to me that the nature of personal dignity means that surviving relatives cannot influence a judgment on the outrage on that dignity. As explained above, human value is universal, inherent in human beings, imperishable and equal for all. Therefore, the pain and humiliation of people other than the victim himself cannot help determine whether there is an assault on human dignity. It would also be contrary to the objective test advocated by the Elements of Crimes and international tribunals. That test in fact does not start from a person involved, but the general "reasonable person".122.

The European Court of Human Rights (ECtHR) did consider the impact that the ill-treatment of a deceased person has on the surviving relatives to be important in assessing whether Article 3 of the ECHR was violated with regard to the surviving relatives themselves.123.Under the ECHR, the personal dignity of the deceased is not recognised: "that the human quality is extinguished on death and, therefore, the prohibition on ill-treatment is no longer applicable to corpses"124.. The ECtHR did however accept that the person confronted with the mutilated body of a loved one suffers degrading treatment in violation of Article 3 of the ECHR. Therefore, the issue is not the violation of the prohibition of inhuman or degrading treatment of the deceased, but the rights of the family member.

The cultural context

The footnote to the Elements of Crimes includes: “This element takes into account relevant aspects of the cultural background of the victim.” It is not explained further how these aspects are included in the judgment.

There are different views in the literature on whether this cultural background should be included in the aforementioned subjective or objective test. Andersson argues that the subjective element includes not only the victim's suffering and sensitivity, but also cultural background.125.On the other hand, Arnold argues that what matters is perception in a specific cultural or religious context: “the objective element would be met by showing that the act would be ‘generally recognized’ as an ‘outrage upon personal dignity’ when inflicted upon a person belonging to a particular cultural of religious group background”.126.

I am inclined to agree with Arnold. The Elements do not refer to the views of the victim, but their background. This presupposes a connection to generally knowable aspects of culture and not a connection to personal ideas about it. If it did include it in the subjective test, it could hardly be included in the case of deceased people, who, after all, no longer have subjective experiences, while it is precisely with regard to death that cultural, including religious, views play a major role.

Finalisation of the legal framework

"Outrages upon personal dignity" is a provision of the Geneva Conventions for armed conflicts not of an international character created as a compromise, which is now universally valid under customary law and entails individual liability under criminal law. International tribunals have sought to flesh out this concept by looking, to varying degrees, at the subjective experience of the victim and a more objective valuation. However, a more far-reaching substantive definition is lacking, and the case law is mostly casuistic. However, both international case law and the Elements of Crimes have demonstrated that the violation of personal dignity must be sufficiently severe to constitute "outrage”. This is also in line with both the text of laws and treaties and the universal nature of this provision. With regard to the deceased, who do not experience subjective suffering and for whom the consequences of a violation are potentially less severe than for the living, this has led to (national) case law that assumes an outrage only occurs if the corpse is mutilated, the explicit affiliation with such mutilation or an act of equal severity. While the cultural background of the victim may play a role in the final verdict, the impact the charged acts have on the surviving relatives cannot.

Assessment of the ground for cassation

As stated above, the first subcomplaint entails that the holding of the Court of Appeal that the established conduct is merely disrespectful, but does not constitute an "outrage upon personal dignity" as referred to in Article 6(1)(c) of the International Crimes Act, demonstrates an incorrect interpretation of the law, or at least that the Court of Appeal gave insufficient reasons for that judgment in light of what the advocate general has put forward in that regard. Specifically, the Court of Appeal allegedly did not pay any attention to the individual or the cultural background of the victims and completely disregarded the subjective criteria. Finally, the Court of Appeal allegedly left it unclear which role the interests of the surviving relatives would play in its judgment.

In connection with the review in cassation of the Public Prosecution Service's ground for cassation against the acquittal pronounced by the Court of Appeal, it is first of all important to note that with regard to the ruling on whether the charge has been proven it comes down in part to an evaluation of the available evidence. The fact-finding court decides what it deems reliable and useful evidence from the available material and to what evidence it does not assign any value. In principle, the fact-finding court need not substantiate these decisions on the selection and evaluation of the evidence.127.The decision that acquittal should be given, which decision was rendered based on this selection and evaluation, also cannot be fruitfully contested in cassation. Acquittals that are based on the view that the available evidence is either insufficient or insufficiently convincing, fail based on the rule that such decisions cannot be reviewed in cassation. Established case law provides that it cannot be examined in cassation whether the judge of fact that acquitted the accused on the basis of its assessment, rightly arrived at that judgment.128.

Under specific circumstances, cassation leaves limited room for the assessment of an acquittal or partial acquittal. Thus, Article 359(2), second sentence, of the Dutch Code of Criminal Procedure implies that the fact-finding court will have to give reasons for an acquittal if the Public Prosecution Service has taken an explicit and substantiated position on the evidence. Thus, a judge who departs from such a position will have to state particular reasons for rendering the dissenting decision.129.The reasons for an acquittal can be tested in cassation for its comprehensibility.130.

On appeal, the advocate-general argued, among other things, that the deceased were spat at from a short distance at various times. And that at one point a foot was placed on the body of one of the deceased. In that context, the advocate general argued that placing a foot on or moving a foot against the body of a deceased person is especially humiliating and degrading; as if the bodies of the deceased are only worthy enough to be touched with a dirty sole of a shoe. In addition, reference was made to the cultural background of the deceased and that in Islamic culture, showing the sole of your shoe to someone is already a sign of extreme disrespect.

I can agree with the remedy to some extent on two points. As explained above, the subjective test in the case of a deceased person has little distinctive character, so it cannot support the Court of Appeal's judgment. Furthermore, I arrive at the conclusion that the Court of Appeal's holding "that the interests of the surviving relatives may also play a role in the question whether there is an outrage upon personal dignity" demonstrates an incorrect interpretation of the law. However, this need not lead to quashing the verdict because the Court of Appeal did not consider this aspect further in its judgment due to a lack of factual information, while what the Court of Appeal considered further does not demonstrate an incorrect interpretation of the law and can support the judgment that the outrage upon the personal dignity cannot be demonstrated.

Indeed, the Court of Appeal established that video 1 shows slain government soldiers surrounded by fighters from Ahrar al-Sham , the fighters shouting slogans, chanting and commenting on their own success and the defeat of the government soldiers in the battle for Al-Ghab . The slain soldiers are also being verbally abused and insulted and one of the fighters is seen placing his foot on one of the bodies, the accused is seen moving his leg towards one of the bodies and two persons are seen spitting in the direction of the bodies.

The Court of Appeal primarily held that "conduct that, for example, is degrading someone of a particular nationality, culture or religion, while not necessarily so to others, also falls within the scope of the concept of outrages upon personal dignity". The Court of Appeal subsequently found that the actions of Ahrar al-Sham 's fighters in video 1 were disrespectful, but do not constitute outrage upon personal dignity in this case. The Court of Appeal based that judgment on, among other things, the fact that the uniforms of the deceased soldiers remained virtually untouched and they were not displayed as trophies. The Court of Appeal further attributed significance to the circumstance that the actions of the fighters lasted only a few minutes, that the placing of a foot on a body, the movement with the leg and the spitting once and twice, respectively, took place in a brief moment. In its judgment, the Court of Appeal further considered that the emphasis was on celebrating the victory at the expense of the deceased soldiers, which to some extent detracts from the gravity of the fighters' behaviour.

The Court of Appeal apparently held that, in view of these facts and circumstances and taking into account the cultural background of the victims, the identified conduct did not constitute such a severe violation of personal dignity that it will be generally recognised as an outrage on that personal dignity.

All in all, I believe that the Court of Appeal's judgment does not constitute an incorrect interpretation of the law, except with regard to what I noted in paragraph 3.70. Furthermore, in view of what I have stated and the restrained assessment in cassation, I consider the Court of Appeal's judgment not to be incomprehensible and, also in view of what the advocate general has put forward in this respect on appeal, sufficiently reasoned.

The first subcomplaint fails.