The Public Prosecutor v. Guus Kouwenhoven

Court	District Court of The Hague, The Netherlands
Case number	AX7098
Decision title	Judgment
Decision date	7 June 2006
Parties	Public Prosecutor’s Office Guus Kouwenhoven
Categories	War crimes
Keywords	anonymous witnesses, fair trial, self-defence, supplying of weapons, war crimes
Links	Judgment (in Dutch) Judgment (in English)
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. The District Court acquitted Kouwenhoven of war crimes in first instance, stating that the link between him and those who actually committed the crimes was insufficiently substantiated. However, Kouwenhoven was convicted for his involvement in illegally supplying Taylor with weapons. According to the Court there was sufficient evidence that ships, owned by the OTC, within which Kouwenhoven held a prominent position, shipped weapons into the port of Buchanan, which was managed by OTC. These acts, the Court reasoned, did not only violate Dutch laws but also the international legal order. Given the serious consequences of supplying the Taylor regime with weapons, Kouwenhoven was sentenced to eight years of imprisonment: the maximum sentence.

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 defence held that Kouwenhoven had been denied of his right to a fair trial and that it had been impossible for the defence to test the legal basis and reliability of the investigation results. Regarding the supplying of weapons, the defence 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.

Related developments

The prosecution appealed against Kouwenhoven's acquittal of war crimes. The defence repeated its argument that the prosecution’s working methods had irreparably and seriously harmed Kouwenhoven’s right to a fair trial. By interlocutory judgement of 19 March 2007, the Court of Appeal rejected Kouwenhoven’s motion to bar the prosecution (para. 2). However, it did allow the defence to let several witnesses testify (paras. 3-4). Also, Kouwenhoven's detention was suspended (p. 5).

On 10 March 2008, the Court of Appeal acquitted Kouwenhoven of all charges due to the ultimate lack of conviction that needs to be founded on reliable evidence (paras. 13-14). On 20 April 2010, the Supreme Court referred the case back to the Court of Appeal, as it considered that the Court of Appeal had insufficiently motivated its decision not to allow the prosecution to have witnesses testify anonymously (para. 11). 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 (p. 67).

During this conflict, Guus Kouwenhoven owned the Royal Timber Company (RTC) and held an important position in the Oriental Timber Company (OTC) (pp. 62-63). 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.

Core legal questions

Can it be established that, during the periods that the international sanctions were in force, arms fell into the hands of Charles Taylor’s regime, and if this was the case, can the Accused's contribution and complicity to this supply had to be proven?
Can the Accused be held co-responsible for war crimes committed during the Second Liberian War (1999-2003) by furnishing the means, giving orders to that end, or can he be held at least complicit in or promoted those crimes?

Specific legal rules and provisions

Articles 8 and 9 of the Criminal Law in Wartime Act.
Articles 47 and 48 of the Dutch Criminal Code.
Article 1 of the Dutch Economic Offenses Act.
Article 2 of the Dutch Liberian Sanctions Regulations 2001.
Article 2 of the Dutch Liberian Sanctions Regulations 2002.
Article 51 of the Charter of the United Nations.
Security Council Resolution 1343 (2001).
Security Council Resolution 1408 (2002).
Regulation 1146/2001 of the Council of the European Union.
Regulation 1318/2002 of the Council of the European Union.

Court's holding and analysis

The Court acquitted Kouwenhoven of war crimes. It held that war crimes took place in Guinea and Liberia in 2001-2002 and that security personnel of OTC/RTC might have been involved in this. However, the Court also held that there was insufficient evidence that Kouwenhoven knew of this, or that he ordered or consented to these acts (para. 29).

The Court considered Kouwenhoven's complicity in illegally supplying arms to Liberia proven. It based this on, inter alia, his close financial relationship with Charles Taylor (paras. 57-58), his prominent position within OTC and on evidence stating that arms where brought into the port of Buchanan (which was managed by OTC at the time) on ships owned by OTC (para. 59). The defence’s reliance on Liberia’s right to self-defence was dismissed. The Court considered that the Security Council had not mentioned Liberia’s right to self-defence in its resolutions and that the right to self-defence is only applicable until the Security Council has taken measures to maintain peace and security. By adopting Resolutions 1343 and 1408, the Security Council had taken such measures (paras. 61-62). Given the serious consequences of Kouwenhoven's acts, the Court imposed the maximum sentence of eight years of imprisonment (paras. 62-63).

Further analysis

L. van den Herik, ‘The Difficulties of Exercising Extraterritorial Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia’, International Criminal Law Review, 2012, vol. 9, pp. 211-226;
E. Harwell and P. Le Billon, ‘National Connections: Linking Transitional Justice and Development Through a Focus on Natural Resources’, in: P. de Greiff and R. Duthie (eds.), Transitional Justice and Development: Making Connections, Social Science Research Council, New York 2009, pp. 282-332.