The Public Prosecutor v. Guus Kouwenhoven
| Court |
Supreme Court of the Netherlands, The Netherlands |
| Case number |
17/02109 |
| Decision title |
Judgment on the appeal in cassation against a judgment of 's-Hertogenbosch Court of Appeal of 21 April 2017, number 20/001906-10 |
| Decision date |
18 December 2018 |
| Parties |
- Public Prosecutor’s Office
- Guus Kouwenhoven
|
| Categories |
War crimes |
| Keywords |
War crimes, weapons smuggling, amnesty, obligation to investigate, obligation to prosecute |
| Links |
|
| Other countries involved |
|
back to topSummary
Guus Kouwenhoven, a Dutch national, carried out business operations in Liberia since the 1980s. He was the owner and president of two logging companies in operation during the second civil war in Liberia from 1999-2003. The civil war was fought between the Liberian armed forces led by President Charles Taylor on one side and rebel groups on the other. It was alleged that Taylor had financial interests in Kouwenhoven’s businesses and that these businesses were used to facilitate the commission of war crimes.
Kouwenhoven was charged with a number of crimes related to war crimes committed in Liberia and faced a string of cases in Dutch courts between 2006-2018. In its decision of 21 April 2017, the Court of Appeal in ’s-Hertogenbosch convicted Kouwenhoven and sentenced him to 19 years’ imprisonment for complicity in war crimes committed by Taylor’s regime and the supply of weapons. Kouwenhoven appealed, arguing that the amnesty scheme approved by Charles Taylor shortly before his resignation prevented him from being prosecuted.
In a decision of 18 December 2018, the Supreme Court of the Netherlands upheld Kouwenhoven’s conviction, finding it did not have the competence to assess the Court of Appeal’s interpretation of Liberian law and that the Court of Appeal had correctly decided that the amnesty scheme did not prevent the prosecution of Kouwenhoven due to the circumstances in which the scheme was introduced and the obligation under international law to investigate and prosecute war crimes.
back to topProcedural history
The investigation into the defendant commenced in the Netherlands in 2004 and the defendant was taken into custody on 18 March 2005.
On 7 June 2006, the District Court of The Hague quashed the war crimes charges against the defendant, but found him guilty of illegally supplying weapons and ammunitions to Charles Taylor’s regime and sentenced him to 8 years’ imprisonment.
On 19 March 2007, the Court of Appeal of The Hague issued an interlocutory judgment rejecting the motion of the defence to bar the prosecution of the case on the basis of alleged grave violations of the defendant’s right to a fair trial. The Court sustained the defence’s motion to have more witnesses heard and suspended the defendant’s detention.
On 10 March 2008, the Court of Appeal of The Hague acquitted the defendant of all charges due to a lack of reliable investigation and evidence.
On 20 April 2010, the Supreme Court of the Netherlands found the Court of Appeal had erred by not properly motivating its decision not to allow an examining judge to assess whether two anonymous witnesses should be admitted as protected witnesses and referred the case to the Court of Appeal in ‘s-Hertogenbosch.
On 21 April 2017, the Court of Appeal in ‘s-Hertogenbosch convicted the defendant and sentenced him to 19 years’ imprisonment. The Court found the defendant guilty for illegal trafficking of weapons and ammunitions and complicity in war crimes committed by the Liberian armed forces through making an active and conscious contribution to the war operations by providing weapons, transportation, facilities and armed personnel.
The defendant appealed the decision.
back to topRelated developments
Despite Kouwenhoven’s sentence of 19 years’ imprisonment, he remains abroad.
Kouwenhoven is reportedly under house arrest in South Africa, where there is an ongoing extradition case against him.
back to topLegally relevant facts
In 1999 the second civil war broke out in Liberia between the Liberian armed forces led by Charles Taylor and rebel groups. The defendant carried out business activities in Liberia since 1980 and was owner and president of two logging companies in operation during the second civil war (para 2.1, Supreme Court judgment). The defendant allegedly used these businesses to import, store and distribute weapons used by Charles Taylor’s regime in the commission of war crimes, as well as providing facilities, transportation and company personnel who were involved in fighting alongside the Liberian armed forces (para K.5, 2017 Court of Appeal judgment).
On 7 August 2003, shortly before his resignation as President, Charles Taylor approved an amnesty scheme providing amnesty for all acts and crimes committed during the second Liberian civil war. After Taylor’s departure from Liberia, a peace agreement was concluded on 18 August 2003 which established a Transitional Government (para 5.3, Supreme Court judgment). Neither the Transitional Government, nor the Truth and Reconciliation Commission established in 2005, recommended or introduced a general amnesty, or made any reference to the amnesty scheme of 7 August 2003 (para 5.3, Supreme Court judgment).
back to topCore legal questions
- Did the Court of Appeal err in rejecting the defence’s submission that the amnesty scheme approved by Charles Taylor on 7 August 2003 prevented the prosecution of the defendant in the Netherlands for the crimes with which he had been charged?
back to topSpecific legal rules and provisions
- Dutch Judiciary Organisation Act, Sections 79, 81
- European Convention on Human Rights and Fundamental Freedoms, Arts. 2 and 3
back to topCourt's holding and analysis
The Supreme Court rejected the appeal raised by the defence that the amnesty scheme approved by Charles Taylor shortly before his resignation prevented prosecution of the defendant in the Netherlands on two grounds.
First, the defence’s submission that the Court of Appeal’s finding that the amnesty scheme was no longer valid after the conclusion of the peace agreement and creation of the TRC misinterpreted Liberian law could not be tested, as under section 79 of the Judiciary Organisation Act the Supreme Court does not have competence to interpret the law of foreign States (para 5.4).
Second, the Supreme Court found that the Court of Appeal had adequately rejected the submissions raised by the defence as to the application of the amnesty scheme and had not erred in law (para 5.2.2). It reiterated the Court’s findings that the circumstances in which the amnesty scheme was concluded and the obligation under international law (e.g. arts 2 and 3 ECHR) to effectively investigate war crimes and prosecute such crimes if necessary indicate that the amnesty scheme did not prevent prosecution of the defendant in the Netherlands (paras 5.2-5.3). Although it is possible for an amnesty to prevent prosecution of war crimes in exceptional circumstances, the Supreme Court found that this cannot be done lightly and did not prevent prosecution in this case (para 5.2).
On this basis the Supreme Court dismissed the appeal (para 7).
back to topInstruments cited
back to topRelated cases
The Prosecutor v. Charles Ghankay Taylor (Judgment of Special Court for Sierra Leone (Appeals Chamber), 26 September 2013)
The Public Prosecutor v. Guus Kouwenhoven (Judgment of the District Court of The Hague, 7 June 2006)
The Public Prosecutor v. Guus Kouwenhoven (Interlocutory Judgment of the Court of Appeal of The Hague, 19 March 2007)
The Public Prosecutor v. Guus Kouwenhoven (Final Judgment of the Court of Appeal of The Hague, 10 March 2008)
The Public Prosecutor v. Guus Kouwenhoven (Judgment of the Supreme Court of the Netherlands, 20 April 2010)
The Public Prosecutor v. Guus Kouwenhoven (Judgment of the Court of Appeal in ‘s-Hertogenbosch, 21 April 2017)
back to topAdditional materials
back to topSocial media links
