Charities and internal investigations
Last week, on 21st April 2017, the Dutch Appeal Court found Guus Kouwenhoven, 74, guilty of war crimes for selling weapons to Liberia’s then President Charles Taylor between 2000 and 2003. In supplying and transporting the weapons, Guus Kouwenhoven was found not only to have breached international sanctions but also to have acted as accessory to the commission of war crimes.
At that time Liberia was in the midst of a civil war between Charles Taylor’s government forces and rebel groups involving mass atrocities, the use of child soldiers and sexual slavery. Charles Taylor (convicted in 2012 by the Special Court of Sierra Leone) was also involved in the planning and aiding and abetting of war crimes and crimes against humanity in Sierra Leone.
In a written summary of their ruling the Dutch Court concluded that the weapons smuggled in by Kouwenhoven “were used by Taylor in an armed conflict with rebels, in which over a period of many years countless civilians were victimized.”
It is reported that in exchange for the arms Kouwenhoven, who was the Director of Operations of both the Oriental Timber Corporation and the Royal Timber Company, gained trading concessions from Taylor for these companies, and in continuing to trade in the Liberian timber continued to fund Taylor’s regime. In highlighting the danger for companies doing business with unstable regimes the Court stated that they hoped that this case would serve as an example to others that in doing business with governments like Taylor’s “they can thereby become involved in serious war crimes.”
This case is noteworthy for a number of legal reasons. Firstly, it is one of an increasing number of cases being brought under the principle of universal jurisdiction, where, as here, crimes that attract universal jurisdiction have been incorporated into domestic legislation. As we have seen previously in universal jurisdiction cases, these cases can present a number of logistical issues. The Court had to take into consideration: the cultural differences between those hearing the case and the country where the conflict happened, the time delay (of over 10 years) since the events occurred, the trauma the witnesses had experienced, the fact that evidence was gathered from a country at war and the language difficulties which arose from hearing a case with evidence in a number of different languages and dialects.
Secondly it relates to the actions of a business, albeit an individual within that business, for its role as an accessory to war crimes. We are seeing these two issues, war crimes and the actions of companies, even if it is only individuals within those companies, in the news with increasing regularity (see our recent blog of this issue here) where complaints are being made against companies for their complicity in war crimes committed abroad. In this case the Court considered the Defendant’s role within the companies, concluding that he had played a significant role in each of them and furthermore that the interests of Charles Taylor were strongly intertwined with the interests of these two companies. This judgment is particularly important for all those companies trading with countries that are in a state of armed conflict, or where there is reason to suspect that the government with which they are trading might be involved in the commission of war crimes.
Thirdly, the Court had to consider whether or not Liberia and or Guinea were in a non-international armed conflict at the time that the crimes were being committed. This issue had not previously been decided by either an ad hoc UN tribunal or a Dutch judge. With an increasing number of universal jurisdiction cases worldwide, this case highlights the need for domestic judges to be familiar with international law and to able to apply tribunal statute and case law precedent when assessing international law issues domestically for the first time.
For additional information on the application of the principle of universal jurisdiction please see here. The recent Trial International report on the increase of universal jurisdiction cases is also pertinent and appears here. Please note, that as yet the Appeal Court has not released an English version of the decision in the above named matter, this blog is based on our analysis of the Dutch judgment. Once an English version has been published we will provide a link to the decision through this blog.
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