The Public Prosecutor v. Guus Kouwenhoven

This case summary is being revised and will be updated soon

Court	Court of Appeal of The Hague, The Netherlands
Case number	220043306 (ECLI:NL:GHSGR:2008:BC6068)
Decision title	Judgment
Decision date	10 March 2008
Parties	Public Prosecutor’s Office Guus Kouwenhoven
Categories	War crimes
Keywords	war crimes, complicity, supplying of weapons
Links	Judgment
Other countries involved	Liberia Sierra Leone

Summary

During the Second Liberian Civil War (1999-2003), Dutch businessman Guus Kouwenhoven owned the Royal Timber Corporation and had an important position in the Oriental Timber Cooperation. Corporations like Kouwenhoven’s were an important source of income for the regime of Charles Taylor, and a close financial relationship developed between Taylor and Kouwenhoven.

On 7 June 2006, the Dutch Public Prosecutor charged Kouwenhoven with war crimes and with violation of the national regulation which implemented international prohibitions of supplying weapons to Liberia. Although the Court of First Instance found him guilty of arms smuggling (but quashed the war crimes charges), the Court of Appeal later found that he could not be convicted for any of the charges due to lack of evidence.

Procedural history

Guus Kouwenhoven, a Dutch national, was taken into custody on 18 March 2005. He was charged with participation in war crimes – by complicity, incitement or promotion – committed by Liberian troops and/or militia between 2000 and 2002; and with supplying arms to the government of Liberia, between 2001 and 2003, in contradiction to Dutch regulations implementing UN Security Council Resolutions and EU regulations. The defense held that Kouwenhoven had been denied of his right to a fair trial and that it had been impossible for the defense to test the legal basis and reliability of the investigation results. Regarding the supplying of weapons, the defense argued that, if the Court would consider Kouwenhoven’s part in this to be proven, the supplying of weapons would be justified as Liberia had the right to defend itself against attacks of rebels under Article 51 of the UN Charter.

The District Court acquitted Kouwenhoven of war crimes, but found him guilty of involvement in illegally supplying weapons. He was sentenced to 8 years imprisonment on 7 June 2006. The prosecution appealed against Kouwenhoven's acquittal of war crimes. The defense repeated its argument that the prosecution’s working methods had irreparably and seriously harmed Kouwenhoven’s right to a fair trial.

Both the prosecutor and Kouwenhoven appealed against this verdict. In an interlocutory appeal, on 19 March 2007, the Court of Appeals rejected the motion of the defense to bar the prosecutor from prosecuting this case. Based on the information before it, the Court did not find grave violations of Kouwenhoven's right to a fair trial. The Court did sustain the defense’s motion to have more witnesses heard by the investigative judge, however, and as it foresaw the process to be a lengthy one, Kouwenhoven’s detention was suspended.

Related developments

On 20 April 2010, the Supreme Court referred the case back to the Court of Appeals, as it considered that the Court of Appeal had insufficiently motivated its decision not to allow the prosecution to have witnesses testify anonymously. The case is currently pending at the Court of Appeal in ‘s-Hertogenbosch (the Netherlands).

Legally relevant facts

In response to the armed conflict in Liberia and Guinea, the UN Security Council issued Resolutions 1342 (2001) and 1408 (2002), which prohibited the supply of weapons to Liberia. The Council of the European Union issued similar Regulations. In order to implement these measures, the Sanctions Regulations Liberia 2001 and 2002 were issued in the Netherlands.

During this conflict, Kouwenhoven owned the Royal Timber Company (RTC) and held an important position in the Oriental Timber Company (OTC). Both companies were situated in Liberia. Allegedly, Kouwenhoven imported weapons into Liberia, in violation of the UN Security Council Resolutions, Council of European Union Regulations and the Dutch Sanctions Regulations. He was also charged with war crimes. The District Court, in first instance, acquitted him of war crimes, but sentenced him to eight years imprisonment for his involvement in supplying weapons to Liberia.

Core legal questions

Does the evidence before the court support any of the charges - relating to arms smuggling to as well as to complicity in war crimes in Liberia - against Guus Kouwenhoven?

Specific legal rules and provisions

Articles 226a and 342(2) of the Dutch Code of Criminal Procedure.

Court's holding and analysis

The whole case comes down to the assessment of evidence: while the Court deemed it certain that war crimes had been committed during the Liberian civil war, and that due to UN sanctions effectuating a weapons embargo it was nothing but a logical conclusion that arms had been smuggled into the country, nothing could be said with such certainty about the alleged role of Kouwenhoven in this. A number of reasons were mentioned.

To start with, the Court expressed its concerns about the investigations - which the Dutch police investigators are supposed to conduct in an unprejudiced and unbiased manner - and their methods and outcome not being as transparent as they should be. This was caused laregly by the fact that investigations were carried out in another, far away country. Additionally, two investigations were conducted in parallel: one by the Criminal Intelligence Unit("Criminele Inlichtingen Eenheid"), and - as became clear during the proceedings, one by the national Criminal Investigations service ("Nationale Recherche") (paras. 7.2-7.6).

The actual evidence presented in court was also problematic: the "hard", objective data available was very restricted in its probational value (paras. 9.7-9.9). This meant the prosecution had to rely heavily on witness statements, which proved difficult in practice - the court even had to remark that "a considerable number of witnesses with certainty issues statements of which it can be objectively determined that they cannot possibly be true" (para. 9.14). This goes even goes to the extent that most witness statements differ from eachother substantially: "the witnesses each present statements that seem plausible separately (albeit that one statement might seem more plausible than another), but each statement rules out another" (para. 9.15). Due to the extent to which the witness statements appear to be factually untrue and mutually exclusive, the Court was unable to find any of the charges convincingly proven. Also, it deemed it unnecessary to request an investigative judge to assess whether two new witnesses (who were currently being heard as witnesses in the Charles Taylor-process) could be heard as protected witnesses, because it did not expect their statements to be of any more probative value.

Kouwenhoven was acquitted of all charges.