'Scientific experiments - IAC' in document 'Netherlands: International Crimes Act'

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RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

§ 2. Crimes
Section 5
2. Anyone who commits, in the case of an international armed conflict, one of the grave breaches of the Additional Protocol (I), concluded in Bern on 12 December 1977, to the Geneva Conventions of 12 August 1949, relating to the protection of victims of international armed conflicts (Netherlands Treaty Series 1980, 87), namely:
(b) any intentional act or omission which jeopardises the health of anyone who is in the power of a party other than the party to which he or she belongs, and which:
(i) entails any medical treatment which is not necessary as a consequence of the state of health of the person concerned and is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party responsible for the acts and who are in no way deprived of their liberty;
(ii) entails the carrying out on the person concerned, even with his consent, of physical mutilations;
(iii) entails the carrying out on the person concerned, even with his consent, of medical or scientific experiments; or
(iv) entails removing from the person concerned, even with his consent, tissue or organs for transplantation;

§ 2. Crimes
Section 5
3. Anyone who commits, in the case of an international armed conflict, one of the following acts:
(c) subjecting persons who are in the power of an adverse party to the conflict to physical mutilation or medical or scientific experiments of any kind, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such persons or persons;
shall be liable to life imprisonment or a term of imprisonment not exceeding thirty years or a sixth category fine.

RELEVANT ROME STATUTE PROVISIONS

Article 8
War crimes
2. For the purpose of this Statute, "war crimes" means:
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons

ANALYSIS

This provision is wider than the ICC Statute.

 

The International Crimes Act 2003 has two provisions dealing with mutilation; Sections 5(2)(b)(ii) and 5(3)(c). The latter adopts the wording of the Rome Statute. The former, reflects the wording of Article 11(2) of Additional Protocol I. It does not not require that the experiments cause death or seriously endanger the health of victims, which is a requirement under the Rome Statute, and specifies that the consent of the victim is not relevant for the punishability of the conduct.