“Kouwenhoven” Case

• Jurisdiction: Holanda
• Judge: Harmsen,Smit,van der Meijde
• Judgment Date: 21 April 2017
• Date: 21 April 2017
• Court: Gerechtshof 's-Hertogenbosch (Nederland)
• Docket Number: (Case No 20-001906-10)

The Netherlands, Court of Appeal in 's-Hertogenbosch.

(Harmsen, Presiding Justice; Smit and van der Meijde, Justices)

(Case No 20-001906-10)

The “Kouwenhoven” Case 1

Economics, trade and finance — Economic sanctions — Liberia — UN Security Council Resolutions 1343 (2001) and 1408 (2002) — Implementation of arms embargo under Dutch law — Whether sanctions regime violated

International criminal law — Difference between perpetrator and accomplice liability — Complicity in war crimes — Requirement that defendant promoted or facilitated the commission of war crimes — Conditional intent — Whether defendant consciously accepted the probability that war crimes would be committed in connection with his material support — Risk of doing business with a government engaged in international criminal activity

International criminal law — Evidence — Admissibility and weight of witness statements — Factors relevant to assessing witness statements obtained in post-conflict environment — Coercion of witnesses — Whether inconsistencies in witness statements requiring acquittal

International criminal law — Circumstances excusing unlawful conduct — National emergency — Whether violations of arms embargo and laws and customs of war justified by right to selfdefence under international law

Jurisdiction — Universal jurisdiction — War crimes — Prosecution of a Dutch national for offences committed abroad — Whether conduct of investigation by Dutch authorities making prosecution inadmissible — Whether amnesty scheme in Liberia barrier to prosecution — No violation of fair trial rights

War and armed conflict — Existence of armed conflict — Whether armed conflict international or internal — Limited gap between norms applicable to international versus non-international armed conflict — Whether violations of laws and customs of war giving rise to individual criminal liability under Dutch law — The law of the Netherlands

Summary:2The facts:—The defendant, Mr Kouwenhoven, a Dutch national, owned and operated two logging companies, the Oriental Timber Company (“OTC”) and the Royal Timber Company (“RTC”), in Liberia during the 1990s and early 2000s. In connection with the operation of OTC and RTC, the defendant had frequent interaction with Charles Taylor, the former President of Liberia, and paid a substantial portion of OTC and RTC royalties to Mr Taylor. Mr Taylor's government granted OTC use and control of the port at Buchanan. From time to time, the defendant acted on behalf of Mr Taylor's government in a diplomatic capacity.

In 2005, prosecutors in the Netherlands charged the defendant with violations of a United Nations arms embargo on Liberia, as implemented under Dutch law, and with the commission of war crimes and crimes against humanity in Liberia and Guinea during the Liberian civil war that had ended in 2003. In 2006, the District Court in The Hague found the defendant guilty of the arms embargo violations but acquitted him on all other counts. In March 2008, the Court of Appeal set aside the judgment of the District Court and acquitted the defendant on the charges relating to the arms embargo.3 In 2010, that decision was overturned by the Dutch High Court, which ordered a retrial of the defendant by the Court of Appeal in The Hague.4

On retrial, the defendant was charged with the commission of war crimes and crimes against humanity in Liberia and Guinea, or, in the alternative, with having incited others to commit war crimes. Further counts alleged that the defendant had deliberately allowed his subordinates to commit alleged war crimes and crimes against humanity or failed to take measures to prevent such conduct. The allegations included the sale or supply of weapons and ammunition to forces controlled by Charles Taylor during the civil war. Mr Taylor's forces were accused of serious violations of international humanitarian law, including deliberate attacks on civilians, rape and torture, the destruction of villages and the theft of property. The defendant was accused of having placed OTC and RTC employees, as well as weaponry and equipment such as helicopters and trucks, at the disposal of Mr Taylor's forces, and of having made RTC properties available for use by those forces. The indictment further charged the defendant with violations of the ban established by Article 2 of the Liberian Sanctions Regulation 2001 (promulgated pursuant to Article 2(2) of the Sanctions Act 1977) for having deliberately sold or supplied weapons, ammunition and other prohibited equipment to persons in Liberia.

Held:—The defendant had violated the Sanctions Act 1977 by importing weapons and other prohibited goods into Liberia and was complicit in war crimes committed in Liberia and Guinea by forces controlled by Charles Taylor. The defendant was sentenced to nineteen years' imprisonment.

(1) The immunity from civil and criminal proceedings granted by a presidential decree in Liberia in August 2003 to all persons within the jurisdiction of Liberia for acts committed during the civil war (“the Liberian Amnesty Scheme”) did not render the prosecution inadmissible in the Netherlands.

(a) The defendant had no justified expectation of non-prosecution in the Netherlands based on the Liberian Amnesty Scheme. The scheme had ceased to have legal effect following the signing of a peace agreement and the establishment of a Truth and Reconciliation Commission charged with recommending prosecutions and amnesties (paras. A.-A.2.2).

(b) The Liberian Amnesty Scheme did not deprive the Dutch authorities of the right to prosecute a defendant of Dutch nationality for crimes made punishable by Dutch legislation. Article 8 of the Wartime Offences Act conferred on Dutch courts universal jurisdiction over war crimes, including violations of common Article 3 of the 1949 Geneva Conventions (para. A.3).

(c) The Liberian Amnesty Scheme was not relevant to the admissibility of the Sanctions Act 1977 violations because the defendant was a Dutch national. The prosecution of a Sanctions Act 1977 violation did not require that the violations took place in the Netherlands or that the underlying conduct was punishable by law in the country where the crime was committed (paras. A.4-B.).

(2) The prosecution was not inadmissible on the ground that the defendant was denied his right to a fair trial.

(a) Article 359(a) of the Dutch Code of Criminal Proceedings provided that a prosecution would be inadmissible only in exceptional cases involving gross violations of due process rights that infringed a defendant's fair trial rights or affected the heart of the legal system. The defendant satisfied neither criterion (paras. C.-C.1.1).

(b) The reliance by Dutch authorities on public reports to establish a basis to investigate the defendant further for suspected criminal offences at the start of the investigation did not violate due diligence principles or the presumption of innocence, even though doubts were later raised about the validity of some information in those reports (paras. C.2-C.2.1).

(c) The use of confidential intermediaries by Dutch authorities at the beginning of the investigation to contact potential witnesses in a complex security environment restricted the defendant's initial ability to examine the motives and trustworthiness of witnesses. This infringement of the defendant's right was not an irreparable procedural error and did not deprive the defendant of a fair trial. Later testimony from witnesses, investigators and confidential intermediaries sufficiently corrected these shortcomings (paras. C.3-C.3.1).

(d) It was unlikely that investigators deliberately sought to prevent the defendant from getting information about how witness statements were obtained or verifying their accuracy and reliability. There was no serious breach of due process principles based on a deliberate or gross neglect of the defendant's fair trial rights (paras. C.3-C.3.1).

(e) Allegations regarding the violation of the attorney–client privilege were not sufficiently substantiated and it was not shown that Dutch police or prosecutors made any use of intercepted material (paras. C.4-C.4.1).

(f) Allegations that the prosecution improperly submitted statements into evidence from confidential witnesses with the knowledge that such witnesses would not be available for questioning were implausible (paras. C.4-C.4.1).

(3) Acquittal of the defendant was not justified by an alleged lack of sufficiently reliable witness statements.

(a) Over the course of the investigation, individual witnesses were questioned multiple times and submitted multiple statements. The lapse of time, political, cultural and socio-economic differences between Liberia and the Netherlands, experiences of trauma, and instances of witness influencing were considered when assessing the accuracy and reliability of witness statements (paras. G.-G.1).

(b) In view of problems associated with testimony obtained long after the events in question, much of the evidence relied upon was taken from statements made at earlier phases of the investigation (para. G.1.1).

(c) Political, cultural and socio-economic characteristics of Liberian society, including linguistic and educational factors, contributed to some witness statements lacking clarity but did not necessarily provide grounds to consider such statements unreliable (para. G.1.2).

(d) Traumatic experiences, including those of former child soldiers who were involved as perpetrators and victims during different phases of the civil war, explained inconsistencies in some witness statements. Weight was given to such statements only in conjunction with other evidence (para. G.1.3).

(e) Some witnesses in Liberia who provided incriminating statements against the defendant to investigators were later approached by individuals associated with the defendant and pressured into providing new witness statements that were exculpatory. Statements by these witnesses were set aside as unreliable...