Case: Ahmad al-Y. -

Ahmad al-Y., a Syrian national, is said to have been a member of Ahrar al-Sham throughout 2015, based on German investigation reports. During that time he allegedly humiliated deceased Syrian soldiers and interrogated captives along with other armed men. In October 2019, he entered the Netherlands as an asylum seeker and was arrested shortly afterwards on the basis of the above allegations. On 21 April 2021, the court of first instance convicted him of war crimes of outrage upon personal dignity and membership in a terrorist organisation, sentencing him to 6 years imprisonment.
Following appeal, on 6 December 2022, the Court of Appeal acquitted him of the war crimes charges, while upholding the conviction on membership in a terrorist organisation, reducing the sentence to 5 years and 4 months imprisonment.
The decision has been appealed by the public prosecutor’s office. The prosecutor argued that the court of second instance erred in finding that Ahmad al-Y’s behaviour did not qualify as outrage upon personal dignity as wa crime. Further, the prosecutor argued that contrary to court of second instance findings, there was sufficient evidence to establish beyond reasonable doubt that the defendant as a member of the terrorist organisation Ahrar al-Sham for a longer period and that the court of second instance did not provide sufficient reasoning to its findings that Ahmad al-Y. was no member of Ahrar al-Sham for a certain period between November 2015 and July 2017. Taking into account customary international law, jurisprudence from international and foreign domestic courts, the Supreme Court found that while the war crime of outrage upon personal dignity can indeed be committed by omission and against a deceased person, the consideration of the overall circumstances and the defendant’s individual behaviour towards the corpse were disrespectful but does not meet the threshold of war crime of outrage upon personal dignity. This ground of appeal was thus dismissed. The second ground of appeal was granted and the case referred back to the court of second instance since the Supreme Court found that the court of second instance failed to give sufficient reasoning as to why and how it found that Ahmad al-Y. was not a member of Ahrar al-Sham around November 2015.