On 21 April 2017, the Dutch Court of Appeal in ‘s-Hertogenbosch issued a decision holding Mr Guus Kouwenhoven, a Dutch national, responsible as an accessory to war crimes committed in Liberia and parts of Guinea between August 2000 and December 2002. The decision is one of few to address corporate accountability for war crimes. As the president of the Oriental Timber Company (OTC) and director of the Royal Timber Company (RTC), Mr Kouwenhoven supplied weapons, and material, personnel and other resources to former Liberian President Charles Taylor and his armed forces, which were used to fuel their fight against a rebel group, the Liberians United for Reconciliation and Democracy (LURD). The court held Mr Kouwenhoven liable not only for directly violating a UN arms embargo in place at the time, but equally as an aider and abettor to war crimes that were committed using the resources he provided, including rape, pillage, murder, and inhumane treatment. Here are a few highlights.
The case against Guus Kouwenhoven
The crimes for which Mr Kouwenhoven stood trial were alleged to have been committed during the second Liberian Civil War between 2000 and 2002, when Former Liberian President Charles Taylor was fighting a brutal war against LURD. The specific charges related to crimes committed in Voinjama and Kolahun in Lofa County in Liberia, as well as in Guéckédou, across the border in Guinea. Although the charges against Mr Kouwenhoven related to his having been “complicit in repeated violations of the laws and customs of war, to wit murder or rape”, the allegations covered a range of different crimes. The court noted that unnamed (co-)perpetrators, members of Charles Taylor’s armed forces, indiscriminately fired at civilians and military targets, burned houses with civilians trapped inside, cut off people’s heads, smashed babies against walls to kill them, forced civilians to undress before shooting them, and raped women and children.
As director and president of two of the largest timber companies in Liberia, Mr Kouwenhoven’s business interests were closely tied to former President Charles Taylor’s political, financial, and personal interests. Mr Kouwenhoven maintained frequent contact with Charles Taylor, who had financial interests in his two companies and frequently received payments and other resources. In exchange, Mr Kouwenhoven gained access to large swathes of territory for the exploitation of timber and was given de facto control over the Buchanan port.
The court noted that Mr Kouwenhoven used his companies to import, store, and distribute weapons in Liberia, in clear violation of the UN arms embargo. He provided trucks for the transportation of armed forces, weapons and ammunition, and facilitated the import of weapons and ammunition. He also actively encouraged his employees to support Charles Taylor, such as by unloading weapons from his ships in Buchanan and transporting them to various places in Liberia or participating actively in the fighting, and threatened those who refused with dismissal. He also allowed the armed forces access to an RTC camp, effectively used as a meeting place and a mechanism for storage and resupply of weapons to the frontline.
Corporate accountability for international crimes
Importantly, Mr Kouwenhoven is not convicted of directly perpetrating international crimes himself. Rather, the court held that he made an “active and conscious” contribution to the commission of serious violations of international humanitarian law, by the provision of material, personnel, and other resources through his businesses in Liberia. Although he had been charged in the alternative as (co-)perpetrator and as an accessory to the crime, he was ultimately convicted as an aider or abettor.
The court noted that, in order to be held liable as an aider or abettor under Dutch law (‘medeplichtigheid’, or complicity, in Dutch), the person must have contributed to or facilitated the commission of crimes by a third party; such assistance must have been specifically directed at the commission of crimes. It need not, however, have been indispensable, i.e. in the sense of ‘without which the crimes would not have been committed’; it is sufficient for the aiding or abetting to have promoted or otherwise facilitated the commission of crimes.
The court held that Mr Kouwenhoven “must have been aware” that “in the ordinary course of events” the weapons and ammunition he supplied and helped import would be used. The court further held that his contribution to the crimes was such that he intended to facilitate and promote their commission. However, the court remained in the dark as to his exact motive (Mr Kouwenhoven has refused to speak to this and has consistently denied the allegations).
The court discussed in detail Mr Kouwenhoven’s business dealings in Liberia since the 1980s. In 1986, he opened his first timber company, Timco, but was forced to stop his activities in 1990 when the First Liberian Civil War broke out; he fled to Sierra Leone. Mr Kouwenhoven later returned to Liberia, and established RTC and subsequently OTC. In 2003, he was again forced to flee because of the ongoing violence. The court concluded that Mr Kouwenhoven, having lived in Liberia for at least two decades, having fled several times and returned, and maintaining close ties to Charles Taylor, “must have had certain knowledge” of the political and ethnic conflicts, and must have known about the nature of crimes being committed. The court also relied upon statements made by Mr Kouwenhoven that confirm his knowledge that the conflicts in Liberia were not fought “in accordance with the Geneva conventions”. Finally, the court observed that the media published widely about the cruelties being committed in Lofa County and Guéckédou; as such, it was public knowledge available to Mr Kouwenhoven.
In other words, the court concluded that Mr Kouwenhoven “knowingly exposed himself to the substantial chance that the weapons and ammunition he provided would be used by others to commit war crimes and/or crimes against humanity”. Importantly, the court held that this included both those crimes for which the weapons and ammunition were used directly (such as shooting civilians), as well as indirectly, when the threat of the presence of weapons and/or armed forces was used to commit crimes, such as rape or pillage. The court further held that he was aware of the cruel nature of the armed conflict being fought by Charles Taylor, and that he knowingly accepted the risk that his assistance facilitated the commission of war crimes and/or crimes against humanity.
Being convicted as an aider and abettor, however, did not in any way diminish his responsibility; in fact, the court specifically noted the seriousness of his contribution to the crimes in sentencing him to 19 years imprisonment. In doing so, the court reiterated the preventative or deterrent value of this judgment: “international businessmen, such as the accused, who do not hesitate to do business with regimes like Charles Taylor’s, are firmly put on notice that they can become involved in, and be held criminally liable for, (international) crimes (against humanity).”
Former Liberian President Charles Taylor was convicted by the Special Court for Sierra Leone in 2012 for 11 counts of war crimes, crimes against humanity and other serious violations of international humanitarian law, committed in Sierra Leone. He was sentenced to 50 years imprisonment (both the conviction and sentence were upheld on appeal). He has not, however, been tried for crimes committed in Liberia. The Dutch court’s decision holding Mr Kouwenhoven accountable for his complicity in war crimes, therefore, not only puts businesses on notice about their potential criminal liability for doing business with (suspected) war criminals, but equally brings a small (if belated) measure of justice to victims in Liberia.
For those interested in reading the full judgment (in Dutch only), it can be found here.
Cross-posted; a longer version of this post first appeared on EUI blogs.