Daily Maverick, 18 March 2020
Kaajal Ramjathan-Keogh is executive director, Southern Africa Litigation Centre. Andrew Feinstein is a former ANC MP and executive director Shadow World Investigations.
Dutch war criminal and arms trafficker Guus Kouwenhoven has found a haven in South Africa following a controversial failed extradition process. Now the courts must determine whether he should have been issued a visa to reside in the country and whether they have an obligation to withdraw that visa.
Arms trafficker Guus Kouwenhoven was sentenced to 19 years in jail by a Dutch court on three charges of war crimes. The offences for which Kouwenhoven was found complicit cover a range of crimes such as cutting off the heads of three civilians, throwing babies against a wall and firing weapons at civilians or plundering possessions of civilians.
Kouwenhoven made a fortune through a corrupt logging business in Liberia and arms dealing on behalf of Liberia’s former President Charles Taylor. Taylor is currently serving a 50-year sentence for “aiding and abetting war crimes and crimes against humanity”. The crimes included murder, rape, sexual slavery, forced conscription of child soldiers, enslavement and pillage.
In sentencing Taylor, the presiding judge stated: “The accused has been found responsible for aiding and abetting, as well as planning, some of the most brutal and heinous crimes in recorded human history.”
And Kouwenhoven was a key enabler of Taylor’s regime of mayhem and murder.
As early as 2000, Kouwenhoven was named by UN investigative reports as “responsible for the logistical aspects of many of the arms deals” undertaken by Taylor. Further investigations painted a picture of a man in the “inner circle” of Taylor’s regime who had used monies raised from his logging interests to financially support the rule of Taylor. It was also reported that Kouwenhoven had helped ship weapons into the country from China via the Liberian port of Buchanan.
In a series of trials, appeals and retrials that ultimately resulted in his 19-year sentence, Kouwenhoven was accused of war crimes in contravention of the Geneva Convention. These included making use of his logging company’s security personnel to fight a number of skirmishes from 2000 to the end of 2002.
In one such incident, Kouwenhoven was accused of being party to a vicious assault on the town of Gueckedou in Guinea. It was claimed that during the attack shots were “randomly” fired into the town without distinction between civilians and soldiers. A house packed with prisoners of war was set alight and another building filled with locals who had surrendered, was destroyed with grenades. One or more babies died after being hurled against a wall and at least three people were beheaded after they had given themselves up.
Kouwenhoven was considered an active participant in the conflict, either by directly ordering, or allowing Charles Taylor to order, troops employed by the Dutchman’s company into battle, selling and supplying arms for the attacks, putting a helicopter at the disposal of Taylor and his inner circle and providing material support in the form of money, cigarettes and marijuana to Taylor’s troops and accomplices.
The prosecution claimed that Kouwenhoven was materially involved in supplying arms, other equipment and military technology in defiance of UN sanctions and Holland’s own Economic Offences Act.
In one of the judgments, the court determined that as a consequence of the multi-million payments Kouwenhoven made to Taylor, the brutal president could be regarded as a beneficial owner of Kouwenhoven’s company, in effect, his business partner.
When the arms dealer was finally convicted and sentenced to 19 years in jail – having prolonged the legal process using his ill-gotten fortune – many in Holland and the international human rights community were relieved that justice was done, albeit with a sense that Kouwenhoven had got off too lightly.
But South Africa is currently preventing the punishment from being applied by, wittingly or not, providing Kouwenhoven with a safe haven.
There are currently two legal efforts in South Africa to ensure that Kouwenhoven can no longer evade justice while living an opulent life in this country.
The first relates to a request from the Netherlands to extradite him to serve his 19-year sentence. The second is an application to revoke the visa issued to him by the Department of Home Affairs because he is both a prohibited and undesirable person in accordance with South Africa’s immigration laws and is as a result not entitled to a visa to reside in the country.
The democratic South Africa dedicated itself to fighting impunity for international crimes by becoming a State Party to the European Convention on Extradition, the Rome Statute of the International Criminal Court and the implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
The Preamble of the Immigration Act states that it will “set in place a new system of immigration control which ensures that – the international obligations of the Republic are complied with”. In this context, South Africa’s international obligations to fight impunity as expressed by the Rome Statute and the International Criminal Court Act are crucial for any interpretation for provisions of the Immigration Act as well as the exercise of discretion under the act.
The distinction between extradition and deportation is that deportation describes the removal of a foreign national from a state who has no permission to be there, while an extradition is the handing over by one state to another state of a person convicted or accused of a crime. The European Convention on Extradition provides for the extradition between states of persons wanted for criminal proceedings or for the carrying out of a sentence. A state party may refuse to extradite its own citizens to a foreign country. South Africa has been a party to this convention since 2003.
On 21 February 2020, in a highly controversial decision, a Cape Town magistrate found that according to the South African Extradition Act someone could be extradited only in relation to offences alleged to have been committed within the territorial jurisdiction of the state requesting extradition. As Kouwenhoven’s criminal acts were committed in Liberia, she found that he could not be extradited to the Netherlands.
This narrow and flawed interpretation of the Extradition Act is unfortunate, as the magistrate has ensured that this convicted war criminal has found a haven in South Africa. The effect of the decision is not only to grant impunity to Kouwenhoven but also potentially to others who have been convicted of the most egregious crimes in a country other than where they have been convicted.
The National Prosecution Authority is considering whether to appeal the decision. In the interests of international justice we would strongly encourage them to do so.
A hearing seeking the withdrawal of Kouwenhoven’s visa is due to take place on 19 March. Section 29(1)(b) of the Immigration Act provides that “anyone against whom a warrant is outstanding, or a conviction has been secured in the Republic or a foreign country with which the Republic has regular diplomatic relations in respect of genocide, terrorism, murder, torture, drug trafficking, money laundering or kidnapping” does not qualify for a temporary visa or a permanent residence permit.
The Dutch court convicted Kouwenhoven on three charges of war crimes, all of which include acts of torture. The offences for which Kouwenhoven was found complicit include, as mentioned above, cutting off the heads of civilians, throwing babies against walls and firing weapons at civilians or plundering their possessions. All these offences fall under the Geneva Conventions and clearly entail “torture” and “murder”, both of which are offences listed in section 29(1)(b) of the Immigration Act.
Section 29(1)(b) of the Immigration Act must be interpreted as also covering war crimes as one of the crimes which justify declaring a person “prohibited” under the act. A review of the crimes stated in section 29(1)(b) reveals that the provision includes the most serious international crimes such as genocide, terrorism and torture. The Rome Statute states that genocide, torture, war crimes and crimes against humanity all fall under the same category of the most serious crimes punishable. Section 29 of the Immigration Act must be interpreted in accordance with South Africa’s obligations under international law and its own domestic law.
However, if for any reason both legal processes should fail, this case is compelling and important enough to challenge the principle of double jeopardy, by seeking to retry Kouwenhoven in South Africa.
The National Prosecuting Authority, government and the courts must ensure that Kouwenhoven faces the consequences of his heinous crimes and that South Africa’s reputation as a committed enforcer of global human rights and a country deeply committed to its international legal obligations is not tarnished. DM