Introduction
On 21 April 2017, the Dutch Court of Appeal in ‘s-Hertogenbosch issued a decision convicting Dutch national Mr Guus Kouwenhoven to a 19 year jail sentence for illegal arms trafficking and complicity in war crimes in Liberia and Guinea between 2000 and 2002. As a shareholder and president-director of two of the largest companies in Liberia, Royal Timber Company (RTC) and Oriental Timber Company (OTC), Mr Kouwenhoven supplied weapons, material, personnel and other resources to former president of Liberia Charles Taylor and his army, contributing to the fight against the rebel group “the Liberians United for Reconciliation and Democracy” (LURD).
The Court held Mr Kouwenhoven was directly liable for violating the UN arms embargo in placed at that time (Resolutions 1342 of 2001 and 1408 of 2002, which prohibited the supply of weapons to Liberia). At the same time, the Court held he was indirectly responsible for acting as an aider and abettor to war crimes committed with the resources his companies provided, including rape, pillage, murder, and inhumane treatment.
Procedural history
In 2006, Mr Kouwenhoven was acquitted by the District Court of The Hague for complicity in war crimes but convicted for illegal arms supplies to the former President of Liberia, Charles Taylor. In 2008, the conviction was reversed by the Court of Appeal, which acquitted Kouwenhoven of all charges for lack of objective and solid evidence. In April 2010, the Dutch Supreme Court quashed the judgment of the Court of Appeal for having applied too strict a test when ruling that no additional witness evidence could be heard, and referred the case to the appellate court in ‘s-Hertogenbosch to re-examine the case.
Case analysis
The Public Prosecutor v. Guus Kouwenhoven case raises three issues that bear particular legal relevance.
First it is important to note that the public prosecutor chose to prosecute Mr Kouwenhoven as individual in his private capacity, although he was not barred from prosecuting the companies involved under any provision of law. In fact, the Dutch International Crimes Act (ICA) of June 19, 2003 prohibits the commission of war crimes and crimes against humanity by Dutch nationals, including companies. In any case, this case revolves around the actions of a business company, though an individual within that business, for acting as an accessory to war crimes. After assessing Mr Kouwenhoven’s conduct within the companies, the Court concluded that he had played a significant role in each of them and that the interests of the two companies were strongly entangled with those of Charles Taylor. In particular, it was recorded that in exchange of the arms provided, Mr Kouwenhoven was granted privileges and trading concessions for his companies.
Secondly, based on the active nationality principle and the principle of universal jurisdiction, the Court exercised extraterritorial jurisdiction with regard to Mr Kouwenhoven, who owned and worked for companies that were registered outside The Netherlands. As a result, this case has joined the increasing list of cases being brought under the principle of universal jurisdiction, where crimes that attract universal jurisdiction have been incorporated into domestic legislation. This case is in stark contrast with the US decision in Kiobel v. Royal Dutch Petroleum, where the Supreme Court decided the case on the basis of the presumption against extraterritoriality, noting that all the relevant conduct giving rise to the plaintiffs’ claims had taken place outside the US[1]. Since Kiobel, US federal courts of appeals are divided over whether the Alien Tort Statute (“ATS”) in United States categorically forecloses the liability of corporations for violations of customary international law. This unresolved question is expected to be soon decided by the US Supreme Court in Jesner v. Arab Bank plc.
Finally, what is also interesting about the case is that Mr Kouwenhoven was not only found directly liable for violation the UN arms embargo, but was also found indirectly liable for his complicity in human rights violations. The Dutch Court of Appeal found him guilty on both counts and he was sentenced to 19 years in prison. Actions that amount to complicity in crimes, such as the facilitation or the aiding or abetting of crimes, are also penalized under the Dutch ICA. Whereas US Courts have found corporations only civilly liable, this case and Prosecutor v. Frans van Anraat[2] illustrate that Dutch Courts find businessmen criminally liable for their complicity in the commitment of human rights atrocities.
The Court held that by providing weapons and ammunition, Mr Kouwenhoven “must have been aware” that “in the ordinary course of events” those weapons and ammunition would be used. The court further held that he was aware of the cruel nature of the armed conflict being fought by Charles Taylor, and that he knowingly accepted the risk that his assistance facilitated the commission of war crimes and/or crimes against humanity.
Concluding comments
This decision is particularly important for companies conducting business in countries where there is a state of armed conflict or when trading with governments and there are some signs that they might be involved in the commission of war crimes. The Court has maintained that this case is expected to act as an example of the risks faced by persons doing business with governments like Taylor’s, where “they can thereby become involved in serious war crimes.”
[1] Chief Justice John G. Roberts Jr., writing for the majority, wrote: “Even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application”.
[2] Frans Van Anraat was found guilty of supplying Saddam Hussein with chemicals used to produce weapons subsequently used against the Kurds (Dutch Supreme Court, June 30, 2009).
