Corporate accountability: Dutch court convicts former “Timber baron” of war crimes in Liberia

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.

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Corporate criminal responsibility at the Special Tribunal for Lebanon

In a fascinating order from January of this year that was made public last month, Judge Baragwanath of the Special Tribunal for Lebanon determined that two media organisations, together with two officials from the organisations, could be prosecuted for contempt. The question of whether corporations can be held accountable for international crimes has been the subject of much debate over the past number of years, and this is the first time that an international criminal tribunal has found itself to have jurisdiction over corporations.

Article 1 of the STL’s Statute states that the Tribunal ‘shall have jurisdiction over persons responsible…’. The contempt judge did not mention this provision in his analysis, but noted that ‘no … provision of the Statute or Rules expressly limits the scope of contempt proceedings to natural persons’.  Surprisingly, Article 31 of the Vienna Convention on the Law of Treaties is not mentioned once in the decision. It would be difficult to argue that the ordinary meaning of the term ‘person’ encompasses legal, as well as natural, persons, especially in the context of a Statute that mentions ‘his or her’, ‘him or her’ and ‘himself or herself’ in relation to the accused no less than 28 times, and does not use the term ‘it’ in relation to the accused once.

To overcome this hurdle, Judge Baragwanath rather bizarrely concluded (at paras. 23-24) that the Tribunal cannot have jurisdiction over legal persons for the core crimes, but that ‘whether a legal person can be an accused under Articles 2 and 3 of the Statute is a very different question from whether a legal person can be held in contempt for knowingly and wilfully interfering with the administration of justice’. I am not sure that the two matters are so very different. Both concern the jurisdiction of the Tribunal – either it has jurisdiction over corporations, or it doesn’t.

The contempt judge drew the distinction by stating that offences against the administration of justice are designed to preserve the integrity of the judicial process and ‘under the highest procedural standards, corporate entities cannot be any more entitled than natural persons to interfere with the judicial process’. But this is not entirely convincing. It seems to suggest that corporate entities somehow have the capacity to decide to interfere with the judicial process, independently of those who are in charge of them, which is of course ridiculous. I am not convinced of the necessity of the extension of jurisdiction to the corporations in this case. The ICTY has had confidential information leaked by media organisations in the past, and has successfully prosecuted their editors and/or employees for contempt. It is not as if the responsible individuals from within the organisations were unidentifiable in the present case – they are now the co-accused of the companies that they work for!

Moreover, the reference to ‘the highest procedural standards’ seems to be out of place. The majority of the ‘him/her’ references in the Statute, which the judge sought to suggest did not apply in contempt cases, are found in Articles 15 and 16, on the rights of suspects and the accused. But of course, the same rights of the accused must apply, whether he or she is charged with the most serious crimes within the jurisdiction of the court, or offences against the administration of justice. The distinction between the two types of offence falling within the jurisdiction of the court on this basis simply does not withstand logical analysis, and might actually be read as suggesting that the individual charged with contempt is entitled to less than the highest standards of fairness.

While some might welcome the widening of the door to extending jurisdiction to corporations, the quality of the reasoning is questionable, This is another example of judicial activism from the Special Tribunal for Lebanon, and perhaps not its most well-reasoned decision to date.

 

Cross-posted from http://humanrightsdoctorate.blogspot.co.uk