Cape Town - A notorious Dutch war criminal is a free man after a Cape Town magistrate ruled that he cannot be extradited to the Netherlands to spend 19 years in jail.
Guus Kouwenhoven, 77, now residing in Constantia, could only be extradited if he had committed his offences in the Netherlands, ruled magistrate Ingrid Arntsen. Since his crimes were committed in Liberia, she was “obliged to discharge” Kouwenhoven “with great regret” in terms of section 10 (3) of the Extradition Act.
In convicting Kouwenhoven, the Netherlands was exercising extraterritorial jurisdiction based on what is known as “active personality” jurisdiction, said Arntsen. “This allows nations to prosecute their own citizens for crimes committed outside of their borders.
“South Africa also has legislation allowing it to prosecute persons for crimes committed beyond its borders,” she noted, adding: “The exercise of extraterritorial jurisdiction is accepted in many jurisdictions.”
But Kouwenhoven’s defence presented a “compelling” argument that “every time the word ‘jurisdiction’ is used in the Extradition Act, it refers to territorial jurisdiction only”.
“In the matter before me, there is nothing to link the offences of which the respondent has been convicted with the geographical territory of the Netherlands.
“When the act itself so clearly refers to territorial jurisdiction as the basis for declaring a person extraditable, there can be no room for interference by a magistrate’s court.”
Earlier, the court heard that Kouwenhoven had been convicted and sentenced “finally and irrevocably” in a Netherlands court of appeal for various offences, including “complicity in co-committing violations of the laws and customs of war” resulting in multiple deaths and rape.
“These offences involve, among other things, murder (including decapitating civilians, throwing babies against walls and in wells), rape, torture and looting/plundering as set out in article 3 of the Geneva Convention, dated 12 August 1949.”
Kouwenhoven’s offences also include gunrunning for ex-Liberian president and warlord Charles Taylor between July 21, 2001 and May 8, 2002.
Kouwenhoven was known in Liberia as “Mister Gus”, where he ran two timber companies in the early 2000s and used them as cover to smuggle arms, according to the Dutch court. At the time, Liberia was in the grip of a civil war between then-president Taylor’s government and several rebel factions.
Liberia’s string of conflicts since the nineties left an estimated 250000 people dead. Thousands more were mutilated and raped and all sides in the conflict used child soldiers. Taylor stepped down in 2003. He was arrested in 2006, and in 2012 sentenced to 50 years in prison for aiding and abetting war crimes in neighbouring Sierra Leone by the Special Court for Sierra Leone.
Had Kouwenhoven failed the jurisdiction test, he would have been extraditable, as the State, represented by Christopher Burke, had successfully argued that “the Netherlands is party to an extradition treaty with South Africa, namely the European Convention of Extradition”, said Arntsen.
Kouwenhoven’s attorney, Gary Eisenberg, described the judgment as “fair and without favour” and a “victory for the law”.