complicity in war crimes committed by the Liberian armed forces, through making an ‘active and conscious contribution to the war operations’
During the second civil war in Liberia, between 1999 and 2003, the trade in natural resources, namely diamonds and timber, had a significant role in fuelling the conflict in Liberia and neighbouring Sierra Leone, allowing Liberian President Charles Taylor to generate sufficient funds to sustain military activities and purchase large quantities of arms.
In an attempt to quash the threat to international peace and security posed by the conflict, UNSC resolutions 1343 (2001) of 7 March 200141 and 1408 (2002) of 6 May 200242 largely prohibited the sale or supply to Liberia of arms and related materiel of all type. Both resolutions were implemented in the EU under (EU) Regulation No 1146/2001 of the Council of the European Union of 11 June 2001 and (EU) Regulation No 1318/2002 of the Council of the European Union of 22 July 2002.
The Dutch Prosecution Office investigated and prosecuted Guus Kouwenhoven, a Dutch national, for carrying out business activities in Liberia which facilitated the import, storage and distribution of weapons used by Charles Taylor’s regime. At the time, Kouwenhoven was the owner and president of two logging companies operating in the war-torn country, the Oriental Timber Company and the Royal Timber Company.
The prosecution claimed that by facilitating the import of arms, Kouwenhoven infringed on the UNSC arms embargo and became an accomplice in war crimes committed with those weapons.
In 2006, in first instance, the District Court of The Hague acquitted Kouwenhoven of war crimes due to a lack of substantiated evidence linking him to the main perpetrators. However, he was convicted for violating the UNSC arms embargo against Liberia by shipping weapons in the port of Buchanan, which was managed by one of his companies. Noting that Kouwenhoven ‘[n]ot only (…) acted contrary to the Dutch national prohibitions, but also knowingly and wilfully in violation with the international legal order’, the court sentenced him to the maximum sentence of eight years of imprisonment.
Kouwenhoven was later acquitted of all charges by the Court of Appeal in The Hague. However, the prosecution appealed against this decision and in 2010 the Supreme Court declared the judgment null and void and referred the case back to the Court of Appeal in ‘s-Hertogenbosch.
On 21 April 2017, the Court of Appeal convicted Kouwenhoven in absentia and sentenced him to 19 years of imprisonment for illegal trafficking of weapons and ammunitions and complicity in war crimes committed by the Liberian armed forces, through making an ‘active and conscious contribution to the war operations’. The Court notably found that the political, financial and private interests of Charles Taylor were strongly intertwined with the interests of Kouwenhoven, with the latter intentionally introducing weapons into Liberia despite the international embargo. In the assessment of the court, by providing and facilitating the distribution of weapons, transportation, facilities and armed personnel to Charles Taylor’s regime, Kouwenhoven, who was aware of the violent nature of the regime’s fighters, exposed himself to the significant probability that war crimes and/or crimes against humanity would be committed by third parties. The court applied this reasoning to crimes for which weapons and ammunition were directly used (i.e. shooting civilians) as well as in cases of indirect use, such as threatening to use weapons and/or crimes committed by the armed groups (i.e. rape and pillaging).
Kouwenhoven filed an appeal, arguing that the Liberian amnesty scheme, approved by Charles Taylor on 7 August 2003 to grant immunity from civil and criminal proceedings against all persons within the jurisdiction of Liberia for acts and crimes committed during the civil war, prevented him from being prosecuted.
The Supreme Court of the Netherlands upheld Kouwenhoven’s conviction, finding that the Court of Appeal had correctly decided that the amnesty scheme did not prevent Kouwenhoven’s prosecution due to: (i) the circumstances in which the amnesty scheme was introduced, and (ii) the obligation for States, under international law, to investigate and prosecute war crimes.
illegal trafficking of weapons and ammunition
complicity in war crimes committed by the Liberian armed forces, through making an ‘active and conscious contribution to the war operations’
Supreme Court of the Netherlands [Hoge Raad der Nederlanden]
This landmark case against a Dutch individual resulted in a double conviction for complicity in war crimes and the violation of international sanctions. It set a significant legal precedent by investigating links between the trade in natural resources, arms trade and the commission of war crimes.