On April 21, 2017, a Dutch court of appeal ruled that Dutch national Guus Kouwenhoven, acting in his capacity as president and director of two timber companies, was an accessory to war crimes including, rape, pillage, inhumane treatment, and murder committed in Liberia and Guinea between August 2000 and December 2002. See Hof ‘s-Hertogenbosch 21 april 2017, RvdW 2017, 20-001906-10 (Kouwenhoven) (Neth.) (in Dutch only). [Global Witness Press Release] The court determined that Kouwenhoven’s provision of weapons, material, personnel, and other resources to the former Liberian President Charles Taylor, in addition to his manifested intent to contribute to the commission of these grave crimes, constituted the aiding and abetting of war crimes committed by Taylor’s armed forces. The court ruled that Kouwenhoven, who assisted in the transportation and distribution of weapons, was liable both for the crimes that were directly committed with the weapons Kouwenhoven supplied and for the crimes that resulted indirectly from their use. He additionally was convicted of violating the United Nations arms embargo. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
The court, issuing a sentence of 19 years in prison, emphasized that with this judgment all international businessmen are put on notice that business with regimes like Charles Taylor’s can lead to involvement with and liability for international crimes. [European University Institute Blogs] While individual businessmen have been held liable for their assistance in committing war crimes in the past, such as in post-World War II trials and at least one other case in Dutch courts, civil society and academics have called for, and foresee, the increased prosecution of individuals for their assistance in the commission of war crimes through their business ties. See Trial International, Frans Van Anraat. [Global Witness Press Release]
Facts of the Case
Kouwenhoven controlled two major timber companies, the Royal Timber Company (RTC) and the Oriental Timber Company (OTC), which did business in Liberia during Charles Taylor’s regime. During the civil war between 2000 and 2002, members of Taylor’s armed forces in Liberia and Guinea beheaded people, killed babies, fired indiscrimiantely at civilians and military targets, raped women and children, tortured people, pillaged, and otherwise treated people inhumanely. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven). [European University Institute Blogs]
Kouwenhoven allegedly provided Taylor with helicopters, freight cars, and trucks for transporting armed forces; weapons and ammunition, including AK-47s and machine guns; and other supplies, including food, cash, and narcotics. Further, Kouwenhoven allegedly threatened to dismiss company employees who would not engage in transporting weapons or participate in the armed conflict itself in support of Taylor. Finally, it was stated that Kouwenhoven may have made certain company camps available to Taylor and his armed forces to use for the purposes of meeting during the conflict, storing supplies, and directing weapons to fighters. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven). [European University Institute Blogs]
In 2005, Kouwenhoven was convicted of violating the United Nations arms embargo in Liberia; at that time, though, the district court acquitted him of charges for assisting the commission of war crimes. In 2008, the appeals court overturned the conviction due to a lack of evidence, and ordered Kouwnhoven’s release. In 2010, the Dutch High Court overturned the appeals court ruling and ordered a retrial before another appellate court, leading to the recent judgment. This case was tried with new evidence that was discovered since 2010, including inspections in Liberia and additional witness testimony. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven). [European University Institute Blogs]
Court of Appeals Analysis
The court found Kouwenhoven liable as an aider and abettor for the war crimes and crimes against humanity committed in Liberia and Guinea between 2000 and 2002 under the principles of customary international law, Common Article 3 of the Geneva Conventions, and the 1992 United Nations arms embargo in force in Liberia. Due to the seriousness of his contribution to the commission of the crimes, and the court’s desire to deter other businessmen, Kouwenhoven was sentenced to 19 years’ imprisonment. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
Suspected Involvement in Commission of Crimes
The court concluded that Kouwenhoven effectively controlled both RTC and OTC. Regarding the relationship between the companies and the alleged perpetrators, the court found substantial political, financial, and private entanglement between Taylor and the companies on the basis that Kouwenhoven was a part of Taylor’s “second inner circle,” Taylor had close financial and business ties to the companies, and these resources were leveraged by Kouwenhoven for de facto control over Buchannan port. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
Regarding the transmission of weapons, the court looked at correspondence, credit card transactions, travel documents, and other evidence to conclude that Kouwenhoven played an important role in the arms imports through the port of Buchanan between 2000 and 2003. Ultimately, the court held that Kouwenhoven violated the United Nations arms emargo when he used his companies to import, store, and distribute weapons in Liberia. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
Individual Criminal Responsibility
Under Dutch law, an accessory to a crime must have contributed to or facilitated the commission of a crime in a manner deliberately promoting the commission of the crime. While Kouwenhoven was not, the court determined, part of a common plan or had direct knowledge of the commission of the crimes, the court ruled that Kouwenhoven must have been aware that in the ordinary course of events the weapons, ammunition, personnel, and other forms of material support he provided would be used. The court concluded that Kouwenhoven intended to facilitate and promote the commission of crimes based on inferences from written communication and witness statements. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
Further, the court noted that based on Kouwenhoven’s extensive experience living in the region, and his exposure to media publicizing the atrocities being committed in the region, that he must have known about the conflict and the types of crimes committed during it. The court determined, therefore, that he knowingly exposed himself to a substantial risk that the resources he provided would be used by others to commit war crimes and crimes against humanity. The court held that this includes crimes resulting from the direct use of the weapons – such as killing someone – as well as those resulting from an indirect use of force – such as using a weapon as a threat to facilitate rape or pillaging. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
Duty to Investigate and Prosecute International Crimes
In his defense, Kouwenhoven asserted amnesty for all crimes committed in Liberia during the war, citing a 2003 statute issued by the then-President Taylor. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven). In response, the court dismissed the defense’s claim, asserting the duty to investigate and prosecute international crimes. Specifically the court relied on Liberia’s 2005 Truth and Reconciliation Commission Act that stated that amnesties should not apply in situations where an individual has violated international humanitarian law or committed an international crime, like crimes against humanity. The court argued that articles 2 and 3 of the European Convention of Human Rights established the obligation to investigate and prosecute alleged perpetrators of war crimes and crimes against humanity. Further, the court pointed to United Nations Security Council resolution 1674 (2006) to support its effort to end impunity in armed conflict through the prosecution of alleged criminals. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven). [European University Institute Blogs]
International Criminal Responsibility of Business Leaders
Under international criminal law, individuals, including business leaders, may be held criminally responsible for international crimes, including crimes of genocide, war crimes, and crimes against humanity, but business leaders have not been as frequently prosecuted for international crimes as other individuals. During the post-World War II trials that established international individual criminal responsibility, business leaders were held responsible for assisting the commission of international crimes through their business practices. For instance, in the Trial of Friedrich Flick and Five Others before the United States Military Tribunal in Nuremberg, Flick, a business leader, was convicted of being an accessory to war crimes committed by the SS because of his financial contribution to the SS and because the ongoing war crimes at the time were common knowledge. In the Trial of Bruno Tesch and Two Others, Bruno Tesch, the owner of a firm that sold poisonous gas, was convicted of war crimes for supplying the gas that was used in concentration camps.
More recently, Dutch courts convicted Frans van Anraat, a supplier of chemical gas, for complicity in war crimes committed in Saddam Hussein’s regime. The court found in that case that he had “positive knowledge” that the gas would be used. His case was finalized in 2009. See M. Cupido, et al., Individual Liability for Business Involvement in International Crimes (2017), at 5.
Academics and civil society members anticipate the future prosecution of business leaders for complicity in war crimes before international criminal tribunals, such as the International Criminal Court. See, e.g., Caspar Plomp, Aiding and Abetting: The Responsibility of Business Leaders under the Rome Statute of the International Criminal Court (2014). [Global Witness Press Release] In particular, following the Kouwenhoven ruling, civil society celebrated the message the ruling sends to the business community that exchanging arms for natural resources may result in individual liability for war crimes and crimes against humanity. [Global Witness Press Release]
Background on Former Liberian President Charles Taylor
In 2012, former Liberian President Charles Taylor was convicted by the Special Court for Sierra Leone on 11 counts of war crimes, crimes against humanity, and violations of international humanitarian law for crimes committed in Sierra Leone between 1996 and 2002; his crimes included murder, rape, pillage, and recruitment of child soldiers. [Open Society Foundations] He was sentenced to 50 years’ imprisonment. [Open Society Foundations]