The Public Prosecutor v. Guus Kouwenhoven
| Court |
's-Hertogenbosch Court of Appeal, The Netherlands |
| Case number |
20/001906-10 |
| Decision title |
Ruling of the three judge panel at the Court of Appeal in ’s-Hertogenbosch |
| Decision date |
21 April 2017 |
| Parties |
- Public Prosecutor’s Office
- Guus Kouwenhoven
|
| Categories |
War crimes |
| Keywords |
War crimes, weapons smuggling, amnesty, obligation to investigate, obligation to prosecute |
| Links |
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| Other countries involved |
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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 illegally importing weapons and ammunition and complicity in war crimes committed by Charles Taylor’s regime. Kouwenhoven was not protected from prosecution by the Liberian Amnesty Scheme introduced by Charles Taylor’s government prior to Taylor’s resignation. The Court found that Kouwenhoven had deliberately provided the weapons used for the war crimes committed by the combined Liberian armed forces and therefore was an accomplice to these 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.
back to topRelated developments
In December 2018 the Dutch Supreme Court upheld the decision of the Court of Appeal of 21 April 2017 convicting Guus Kouwenhoven and sentencing him to 19 years’ imprisonment.
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 (para J). The defendant carried out business operations in Liberia since 1980 and was owner and president of two logging companies in operation during the second civil war (para H.2). The defendant allegedly used these businesses to import, store and distribute weapons used by Charles Taylor’s regime in the commission of war crimes in Liberia and Guinea, as well as providing facilities, transportation and company personnel who were involved in fighting alongside the Liberian armed forces (paras H.4, J.1.5).
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. 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. A.1.1).
back to topCore legal questions
- Does the Liberian Amnesty Scheme preclude the prosecution of the defendant for war crimes?
- Is the prosecution of the defendant inadmissible on the basis of violation of the principles of due process, in particular the principles of equality and legitimate expectation?
- What is the nature of the involvement of the defendant in the war crimes committed, in particular, is it in the nature of direct commission of the crimes, incitement to commit the crimes or complicity in the crimes?
back to topSpecific legal rules and provisions
- Dutch Wartime Offences Act, Arts. 8 and 9
- Dutch International Crimes Act, Arts. 5, 6 and 7
- Dutch Criminal Code, Arts. 1, 7, 10, 27, 41, 48, 49, 57, 78
- Dutch Economic Offences Act, Arts. 1, 2, 6
- Dutch Sanctions Act 1977, Arts. 2, 3, 13
- Dutch Sanctions Regulations 2001, Art. 2
- Dutch Sanctions Regulations 2002, Art. 2
- European Convention on Human Rights and Fundamental Freedoms, Arts. 2 and 3
- United Nations Charter, Art. 51
- Security Council Resolution 1343 (2001)
- Security Council Resolution 1408 (2002)
back to topCourt's holding and analysis
The Court of Appeal found Kouwenhoven guilty of complicity in war crimes. It held that the Liberian Amnesty Scheme (LAS) did not preclude the prosecution of the defendant, as it no longer had formal legal force and an amnesty scheme preventing the prosecution of war crimes is contrary to international law (para A.1.2). The Court found that the prosecution was admissible, since there had been no violation of the principles of due process, in particular, the principles of unequal treatment and legitimate expectations (paras A.2.1-A.2.2).
The Court acquitted Kouwenhoven of charges of the co-commission and incitement of war crimes (para D). However, it held that Kouwenhoven had illegally imported weapons and ammunition and made an active contribution to the war operations of the combined Liberian armed forces by providing weapons, transportation, sites and personnel (para L). The defendant’s conduct demonstrated that he must have been aware that the weapons he supplied would be used in the armed conflict and exposed himself to the significant probability that war crimes would be committed by third parties (para L.2.5). The Court concluded that the defendant had deliberately provided the means for the war crimes committed by the combined Liberian armed forces and had therefore deliberately been an accomplice to these war crimes (para M). The Court imposed a sentence of 19 years’ imprisonment.
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 Supreme Court of the Netherlands, 18 December 2018)
back to topAdditional materials
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