Heshamuddin Hesam

31.05.2016 ( Last modified: 10.06.2016 )
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facts

Heshamuddin Hesam was born in 1948. From 1983 until 1991, under the regime of Soviet-backed president Najibullah, Heshamuddin Hesam was the head of the Afghan military intelligence of the KhAD (Khedamat-e Etelea’at-e Dawlati, the regime’s secret police set up in 1980 to suppress its internal opponents). He later became secretary of state attached to the security ministry before going to Moscow as a military attaché.

Human rights groups say Afghan intelligence workers tortured more than 200’000 people during that period and that around 50’000 of them were killed.

The court summons said one person, who was not identified clearly enough according to the defence lawyers, had been beaten with sticks and had his skin ripped off his body. Others had been subjected to electric shocks.

In 1992, after Islamic Mujahideen guerrilla forces closed in on Kabul after 14 years of civil war against the Soviet-backed Communist government, Heshamuddin Hesam applied for asylum in the Netherlands. His application was denied but for years he continued to live with his family in the central Dutch town of Boskoop.

Hesam was arrested in late 2004 following investigations undertaken by the Netherlands National Investigation Team for War Crimes, a special team set up to investigate and prosecute war crimes and crimes against humanity with a special mandate to screen asylum seekers.

legal procedure

Heshamuddin Hesam was arrested in the Netherlands in late 2004.

He and Habibullah Jalalzoy were simultaneously charged under a law allowing the Dutch justice system to prosecute asylum seekers for war crimes and crimes against humanity allegedly committed in their home countries.

Dutch prosecutors have accused both men of a catalogue of war crimes and crimes against humanity including killing and brutal torture. They asked for prison sentences of 12 and 9 years for Heshamuddin Hesam and Habibullah Jalalzoy, respectively.

Dutch investigators have heard about 20 witnesses, some in Afghanistan, to prepare the trial which started in The Hague on 19 September 2005.

Both Heshamuddin Hesam and Habibullah Jalalzoy denied the charges.

Defence lawyers on the first day of the trial said the evidence was too vague and asked the court to drop the charges.

The defence counsel for Heshamuddin Hesam told the court the allegations were “vague”, several alleged victims’ identities were unclear, and some of the witnesses had died since the alleged crimes took place. She also contested whether the allegations fell within the scope of the law.

The defence counsel for Habibullah Jalalzoy argued that at least some of the evidence was inadmissible.

The defence counsels also claimed that the Prosecutor be discharged from his post for unlawfully amending the indictment and making inappropriate use of immigration files.

The tribunal however, on 20 September 2005, did away with these preliminary matters and ruled that they do not pose an obstacle to the substantial examination of the case. The procedure could thus progress.

During the pleading of the substantial legal matters, the defence counsel for Heshamuddin Hesam proffered, amongst others, that the Dutch Court lacked jurisdiction over the case, given that the conflict at the time was of an internal and not an international nature. The implicit argument was that at the time, public international law did not recognize the existence of war crimes in non-international armed conflicts.

On 14 October 2005, Heshamuddin Hesam was found guilty and condemned to a prison sentence of 12 years. Hesam appealed against this sentence.

On 29 January 2007, the Dutch appeal court upheld the sentence against Hesam.

The two men approached the Supreme Court on the grounds that Dutch judges had no jurisdiction over their case.

On 9 July 2008, the Dutch Supreme Court upheld the convictions and prison sentences on Habibullah Jalalzoy and Hesamuddin Hesam.

The court held that domestic war crimes legislation allowed Dutch judges to “adjudicate such crimes, wherever in the world they were committed, and by whomever”.

spotlight

In 1998, the Netherlands National Investigation Team for War Crimes (Nationaal Opsporingsteam Voor Oorlogsmisdrijven, NOVO) was set up. The NOVO team had been criticised in the Dutch Parliament and in the media because the Public Prosecution Service had for a long time failed to institute criminal proceedings as a result of the team’s investigations.

The NOVO team is responsible for a number of “1F files”. The abbreviation 1F refers to article 1F of the 1951 Refugee Convention, which states that the Convention shall not apply to an asylum seeker “with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity”. A large proportion of these files relate to Afghans, the rest to other nationalities.

The reason that the Public Prosecution Service had not succeeded in bringing a 1F-case before the courts over an extended period of time was due to the practical problems involved in investigating such crimes. These included in particular the difficulty of tracing and talking to witnesses who were mostly living abroad, and persuading them to make a statement, as well as the lapse of time between the commission of the offence and the investigation.

In 2002, Utrecht University conducted an evaluation of the investigation and prosecution of war criminals in the Netherlands. As a result of this report, the means at the disposal of these authorities were doubled and other measures were adopted, amongst which were the improvement of cooperation and information exchange with the services concerned, increased control of investigations and the increase in the use and safeguarding of investigative expertise.

Since then the backlog of 1F cases has been dealt with rapidly, assisted by experts on the countries of origin of suspects. It was then felt that the NOVO team had been given the tools to start a variety of investigations that would appear to offer sufficient scope for the successful investigation and prosecution of war criminals.

The culmination of the revamped NOVO team’s efforts was to be seen in the opening of the first 1F-trial, on 19 September 2005, against the suspected war criminals Habibullah Jalalzoy and Heshamuddin Hesam.