Sunday, August 16, 2009

Difficulties of exercising extraterritorial criminal jurisdiction: The acquittal of a Dutch businessman for crimes committed in Liberia

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

With this post I briefly present my recently published article, "The Difficulties of Exercising Extraterritorial Criminal Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia". An outgrowth of research on domestic efforts, particularly Dutch efforts, to investigate and prosecute international crimes, the article recently was published in the International Criminal Law Review (left).
As host state to the International Criminal Court and fierce promoter of The Hague as the City of Peace and Justice, the Dutch Government is adamant that its own justice system must perform well as a fighter of international crimes. Therefore, a special investigation unit has been entrusted with the task of investigating and prosecuting such offences. Most investigations concern so-called 1F cases, which flow from files of asylum seekers who have been rejected on the basis of a Dutch provision implementing Article 1F of the 1951 Convention relating to the Status of Refugees, which states:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
In addition, two cases have been pursued against Dutch nationals. First of all, there has been a case against Frans van Anraat for supplying chemicals to the regime of Saddam Hussein (judgement in first instance here; appeal judgement here). This post concerns the second case, namely that against Guus Kouwenhoven (credit for 2008 image of Kouwenhoven, at far right, in a court proceeding at The Hague).
In March 2003, the nongovernmental organization Global Witness published a report entitled, The Usual Suspects: Liberia's Weapons and Mercenaries in Côte d'Ivoire and Sierra Leone. The cover of the report depicted Kouwenhoven standing in a lineup with, among others, Charles Taylor (below left), then the Liberian President, now a defendant on trial before the Special Court for Sierra Leone. The report's implication of Kouwenhoven in the civil war in Liberia served as the lead for the Dutch Prosecution Office to start a criminal case against this Dutch national.
In June 2006, a Dutch court in first instance, via this judgement, convicted Kouwenhoven for the violation of an arms embargo, but acquitted of the count on war crimes. This judgement on appeal acquitted Kouwenhoven of all charges. In its judgment quashing the prior conviction, the Dutch Court of Appeal heavily criticized the Public Prosecutor, and maintained that the case against Kouwenhoven was built on quicksand.
Even though not grounded in universal jurisdiction, given that it occurred in the defendant's state of nationality, the case does illustrate the inherent complexities of exercising extraterritorial criminal jurisdiction:
► A remarkable aspect of the case is that the Court of Appeal evaluated the evidence presented in a fundamentally different way than the Court of First Instance had done. This might be related to the inherent difficulties of assessing “foreign evidence”. In my article, I argue that when adjudicating such foreign cases, national judges, given their unfamiliarity with the historical and cultural setting in which the alleged crimes took place, should call upon experts on the region to assist in the evaluation of the evidence.
► In terms of substance, the case leads to interesting questions as to how charges of illegal arms trade do and should relate to charges of complicity in war crimes. On this point, the Court of First Instance observed that Kouwenhoven’s conviction of illegal arms trading, for having supplied Taylor and/or his armed forces with weapons, was in itself not sufficient evidence to consider it proven that the defendant participated in committing war crimes under one of the modes of liability charged. The Court indicated that the weapons delivered could also have been used for acts that are legally permitted or acts that cannot be qualified as war crimes. One may wonder which legally permitted acts the Court had in mind in the context of Liberia at the time. (Just last month, Taylor denied any trading of arms-for-diamonds in his testimony before the Special court.) Yet, the Court’s general conclusion that the illegal delivery of arms to a region where war crimes are being committed does not necessarily lead to responsibility for war crimes is probably correct.
In sum, the case leads to the complex legal question whether, and under which circumstances, an arms trader can be held criminally responsible for international crimes potentially committed with the arms that he delivered. This is a question that has not yet received a final answer.

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