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| |  | | Heshamuddin Hesam | | | context : | Afghanistan  | | judgement place : | Netherlands | | status : | Sentenced | | particulars : | Condemned by a criminal tribunal in The Hague for war crimes committed in Afghanistan; sentence upheld on appeal and by the Dutch Supreme court on 9 July 2008 | | position : | Head of Afghan military intelligence |
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| | | | Heshamuddin Hesam was arrested in the Netherlands in late 2004.
He and Habibullah Jalalzoy (see “related cases”) 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 deny 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 defense 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 defense counsel for Habibullah Jalalzoy argued that at least some of the evidence was inadmissible.
The defense 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 can thus progress.
During the pleading of the substantial legal matters, the defense counsel for Heshamuddin Hesam proferred, 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 is, 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 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, by whoever". | |     click for more... | | Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty. | |  |  | | last time seen : | | | The Hague (The Netherlands) | | | judgement period : | | | 19.09.2005 - 14.10.2005 | | | charges : | | | Torture
War crimes | | | profile last modified : | | | 20.07.2008 |
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