International crimes in Dutch Courts: Dutch Businessman Convicted for Complicity in War Crimes and Illegal Weapons Trade

By: Rosalie Dieleman & Emma Bakkum, Research Associates, PILPG-NL

On 21 April 2017, the court of appeal of Den Bosch convicted 74 years’ old Dutch businessman Guus Kouwenhoven for illegal trade in weapons and complicity in war crimes in Liberia and Guinea between 2000 and 2003. He is sentenced to 19 years of imprisonment. Kouwenhoven, in his position as Director of Operation of the Oriental Timber Company (OTC) and of the Royal Timber Company (RTC) had a close relationship with former Liberian president Charles Taylor. An investigation into his activities was launched in February 2004. Kouwenhoven was accused of complicity in war crimes and weapons trade in violation of the UN embargo in place at the time.

On 21 April 2017, the court of appeal in Den Bosch sentenced Kouwenhoven to 19 years of imprisonment for complicity in war crimes in Liberia and Guinea between 2000 and 2003 as well as illegal arms trade. The court of appeal considered the facts proven, as consistent and reliable evidence was established as a result of additional investigation and witness hearings. Furthermore, with regards to sentencing, the court of appeal noted that it took into account that the crimes committed concern “very serious violations of the principles of humanitarian law” and that the suspect played “an important supporting role” in these violations. With the sentencing decision, the court intends to signal the court’s judgement of the gravity of the crimes to the victims and their families, as well as the international legal community. The sentencing aim of general prevention is given special attention by the court, noting that “businessmen like the suspect, who trade internationally and do not shy away to do so in cooperation with regimes like that of Charles Taylor, should be warned that they can get involved in (international) crimes (against humanity)”.

Kouwenhoven is the second Dutch businessman to be convicted for complicity in war crimes, following the conviction of Frans van Anraat in 2007. Van Anraat was convicted by the Supreme Court of the Netherlands for complicity in war crimes by delivering chemicals used for the production of mustard gas to the government of Sadam Hussein in Iraq.

Kouwenhoven has, to date, denied involvement in the crimes and is deliberating whether to file an appeal to the judgment. Kouwenhoven’s lawyer, Inez Weski, already expressed her intent to start a procedure at the European Court of Human Rights. She argues that, due to Kouwenhoven’s detoriating health, detention would be a violation of the duty of care of the Netherlands as laid down in the European Convention for Human Rights.

The judgment of the court of appeals in April 2017 followed a lengthy procedure before the Dutch courts. In 2006, the district court of The Hague convicted Kouwenhoven for illegal arms trade. He was, however, acquitted for complicity in war crimes due to lack of evidence. Both the prosecution and defense appealed. In 2008, the court of appeal in The Hague acquitted Kouwenhoven of all counts, due to the unreliability of several witness statements resulting in a lack of evidence. In 2010, however, the Supreme Court quashed this judgment and determined that the public prosecution’s office had unjustly not been given the opportunity to hear two anonymous witnesses. The Supreme Court referred the case back to the court of appeal in Den Bosch, where the case was reopened on 6 February 2017.

This judgment was the second judgment in April 2017 in an international crimes case in the Netherlands, on 4 April 2017, the Supreme Court of the Netherlands came to a final judgment in the criminal proceedings against five Dutch nationals involved in the Liberation Tigers of Tamil Eelam (LTTE).

International crimes in Dutch Courts: Supreme Court upholds conviction of Dutch ‘Tamil Tigers’

By: Rosalie Dieleman & Emma Bakkum, Research Associates, PILPG-NL

On 4 April 2017, the Supreme Court came to a final judgment in the criminal proceedings against five Dutch nationals involved in the Liberation Tigers of Tamil Eelam (LTTE). The Supreme Court followed the decision of the court of appeal and confirmed the conviction for crimes committed during the Sri Lankan conflict. The five were convicted for participation in a criminal organization with the intent to commit terrorist offences, as well as participation in and leading of an organization with the intent to commit crimes.

The LTTE is a separatist organization established in 1976 with the aim of finding an independent state in the north and east of Sri Lanka for the Tamil population. In 2008, an investigation into the LTTE in the Netherlands was started. As a result, Thiruna E., Joseph M.J., Srilangan R., Ramachandran S., and Lingaratnam T., were found as leaders of various Tamil organizations in the Netherlands, playing an important role in the LTTE’s international network.

The Supreme Court reiterated the 2015 judgment of the court of appeal, by concluding that the armed conflict in Sri Lanka was a non-international one and therefore “Dutch criminal law can be applied to members of an opposition group who commit terrorist offences outside the territory of the Netherlands”, as international humanitarian law is not exclusively applicable. Moreover, the Supreme Court concluded that combatant status is only conferred upon troops involved in an international armed conflict (i.e. between states) and thus not upon LTTE members, who were, as established before, involved in an internal armed conflict.

In 2015, the court of appeal convicted the five Dutch Tamils for participation in a criminal organization with the intent to commit terrorist offences, as well as participation in and leading of an organization with the intent to commit crimes. Appeal was filed in all five cases. The main question during higher appeal was whether the five Dutch Tamils could be prosecuted under Dutch criminal law for their actions. The defence argued that the conflict in Sri Lanka is an international conflict, leaving only international humanitarian law applicable to the case. The defence secondly argued that the defendants, in their capacity as LTTE members could claim combatant status. This status would enable them to participate in the armed conflict in Sri Lanka and consequently they would only be liable for violations of international humanitarian law. This argumentation was unsuccessful before the Supreme Court.

A second international crimes case was adjudicated in April 2017 in the Netherlands. On 21 April 2017, the court of appeal of Den Bosch convicted 74 year-old Dutch businessman Guus Kouwenhoven for illegal trade in weapons and complicity in war crimes in Liberia and Guinea between 2000 and 2003.

International cooperation leads to Gambian ex-minister’s extension of detention

By: Jill Bähring, Research Associate, PILPG-NL

Switzerland extends the detention of former Gambian minister of the interior, Ousman Sonko, after securing further evidence for crimes against humanity. Sonko is accused of committing and overseeing torture during his term as interior minister from 2006 to 2016. Gambia now seeks his extradition, according to interior minister Mai Ahmad Fatty.

Ousman Sonko was a righ-ranking Gambian lieutenant as well as interior minister. He was dismissed by Gambia’s former dictator Yahya Jammeh in September 2016, before Jammeh himself was deprived of power last year. Sonko then fled to Sweden before entering Switzerland in November, where he requested asylum. Trial International then triggered his arrest by filing a complaint with the Swiss authorities.

The new Gambian government led by election winner Adama Barrow had provided additional evidence to aid Switzerland in the case against Sonko. Following the submission of seized documents, his detention was extended by three months.

Only days after the press reported Sonko’s extension of detention, Gambia’s new interior minister Mai Ahmad Fatty announced that the country now seeks Sonko’s extradition. The newly elected democratic government intended to question him on cases of torture and enforced disappearance of Gambia’s opposition, such as Solo Sadeng, who was the organising secretary of the United Democratic Party (UDP).

Solo Sadeng was arrested in April 2016, among the prior government of dictator Yahya Jammeh. He was killed during his arrest. His corpse was exhumed in May 2017 and is undergoing examination for further evidence.

Evidence for witness bribery and war crimes against Peru’s former president

By: Jill Bähring, Research Associate, PILPG-NL

Peru’s former President Ollanta Humala faces investigation into allegations of crimes against humanity related to the fight against the Maoist guerilla group Shining Path in the 90’s by the Peruvian military. Two new witnesses issued testimony on torture and murder of civilians allegedly carried out at the Madre Mia military base.

Humala was an army officer in the 80’s and 90’s. He served as head of state from 2001 to 2016. He originally ran for office as a leftist, but then shifted to the right during his term. Among other things, he supported a bill that criminalized the denial of the Shining Path’s role in the Peruvian civil war in the 80’s, which cost the life of 69,000 individuals. A previous investigation against him was dropped in 2009 for lack of evidence.

However, newly leaked transcripts of phone conversations that were recently submitted to local media suggest that Humala bribed witnesses to get a testimony in his favour. Witness Jorge Avila, who testifies that his brother was killed and tortured by Humala, who allegedly operated under the pseudonym “Capitan Carlos” at military basis “Madre Mia”, told the newspaper El Comercio that he received $4,500 in 2006, when he first came out to the public, to recant the accusations against Humala.

In addition to these new allegations, Humala and his wife are currently under investigation for embezzling and laundering campaign funds in 2006 and 2011.

Ollanta Humala denies all allegations.

Bridging Scholarship and Practice: 20 Years of the Public International Law & Policy Group

By: Brianne McGonigle Leyh and Julie Fraser, Senior Counsel, PILPG

This article was published earlier in the Utrecht Journal of International and European Law on 12 April 2017.

When the Editor-in-Chief of the Utrecht Journal of International and European Law (UJIEL) approached us with the possibility of guest editing a special issue related to public international law and policy, we felt the timing could not have been better. As academics at Utrecht University with the Netherlands Institute of Human Rights and Montaigne Centre for Judicial Administration and Conflict Resolution, we felt that a theme linking the world of lawyers with that of policymakers was important in order to examine the role of law in protecting human rights and security. Moreover, as Senior Counsel with the Public International Law & Policy Group (PILPG), which celebrated its 20-year anniversary in 2016, we welcomed the idea to link academic scholarship with the work of PILPG. After all, PILPG’s founders, Professor Paul Williams and Professor Michael Scharf, have themselves acted as bridges between scholarship and practice for years.

As a result, this special edition is not only intended to highlight the extraordinary work carried out by PILPG on issues of law and policy around the world, but also to emphasise the importance of linking scholarship with practice and addressing contemporary issues impacting the world in which we live. PILPG’s motto ‘lawyering peace’ requires reflection on the role that law can play in helping to bring about the peaceful resolution of serious problems affecting individuals and societies as a whole. This special edition of UJIEL, addressing a variety of themes, does just that.