Archive for May 6th, 2017

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Dutch precedents – Future judicial issues for Ukraine?

May 6, 2017

Recently a court in The Netherlands convicted one of its businessmen for complicity in war crimes.

In summary Guus Kouwenhoven was convicted of complicity in war crimes for supplying weapons to Liberian despot Charles Taylor which he then use to brutalise, terrorize and murder en masse.

The breaching of UN embargoes aside, for which he was separately convicted, Mr Kouwenhoven was found to be complicit in rape, murder, torture and all the other vile acts carried out by Charles Taylor’s regime.  To be precise the specific charges against him were that he was “complicit in repeated violations of the laws and customs of war, to wit murder or rape”.

As for mens rea, it was in Mr Kouwenhoven’s business interests to support Charles Taylor and his regime because his timber business had lucrative deals with those within that murderous regime.  Thus trucks, weapons, equipment and ammunition were supplied.

UN embargo issues aside, the complicity charges and subsequent trial revolved around his indirect responsibility via supplying support and assistance in the commission of war crimes – not ordering or directly perpetrating them.

His guilt was decided by his “active and conscious contribution” by “the provision of material, personnel and other resources” and the court stating that it was not necessary to know for certain that such assistance would be used in the commission of such crimes.  It was enough “to be aware that in the ordinary course of events they would be used”.  Further the court noted that the conflict was known to not be fought in accordance with the Geneva Conventions.

More bluntly stated therefore, the accused knowingly exposed himself to a more than substantial risk that his assistance would be used in the commission of war crimes and crimes against humanity, and was thus found guilty and subsequently sentenced to 19 years in prison (no doubt appeals to follow).

There are of course wide implications that stretch far beyond the borders of The Netherlands if this verdict sets a trend elsewhere.  Many successful old and time served defences and presumptions (Alien Tort Statute etc) failed to save Mr Kouwenhoven.

With The Netherlands prosecuting one of their own, the questionable practice/perception of “Victors Justice” also took a blow.

Naturally a reader cannot help but ponder the war in eastern Ukraine through the lens of this judgement.

That incidents within this on-going war have fallen well outside the Geneva Convention, particularly in  the first 2 years of war, and that private business and businessmen have been active in supplying weapons, materials, personnel and ammunition to both sides is a matter of record.

Indeed whilst the facade long since failed to convince any reasonable minded person, The Kremlin still claims that the occupied Donbas is maintained by volunteers – mysteriously equipped, with never ending ammunition stocks, and having more tanks and artillery than numerous European nations.  The inference (and occasional statement) is that these structures are supported by the economies of these independently economically nonviable regions and the philanthropic assistance of certain concerned well off Russians.  (For example, Konstantin Malofeev among others.)

Ukraine has almost entirely brought the volunteer battalions that formed at the commencement of the war  under the structures and processes of either the military or interior ministry.  Nevertheless there is at least one unit that refuses to be assimilated into governmental command and control, and yet mysteriously remain well armed and well equipped.

Regardless of how matters stand today,  there are units, incidents and sponsors during 2014 and 2015 that prima facie meet the same criteria that was placed before The Netherlands court.

Some may perceive Ukraine’s prosecution of members of the Tornado Battalion also as something akin to striking a blow at “Victors Justice” – albeit that would be a very charitable view when that particular unit was clearly perceived as “rogue” by those in Kyiv and had therefore to be dealt.

Whatever the case, it will be interesting to see whether other courts in other nations follow the lead of this Dutch decision – and whether in 5 or 10 years time Ukrainian courts will be asked to judge similar trials based on happenings in the most recent past of eastern Ukraine.

Time will tell (as it always does).

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