The Historical Importance of the Kouwenhoven Trial

Last month, a Dutch Court of Appeal convicted Dutch businessman Guus Kouwenhoven for complicity in war crimes that were perpetrated in Liberia and Guinea a little less than two decades ago. Kouwenhoven was a timber merchant, who also shipped weapons to the Liberian President Charles Taylor in clear violation of UN arms embargoes, which Taylor used to brutally terrorize civilian populations. Presently, the Kouwenhoven judgment is only available in Dutch (see here), but I know something of the backstory behind the case through the work of Global Witness, have benefited from Dieneke De Vos’s very helpful overview of the judgment (see here), and learned from Ruben Carranza at the International Center of Transitional Justice’s discussion of the trial’s significance as part of broader aspirations for economic accountability in transitional justice (see here). In what follows, I consider the self-consciously provocative claim that Kouwenhoven is among the most important war crimes cases in the history of international criminal justice.

There are several reasons why the Kouwenhoven case might come in at the top of a ranking of war crimes trials, if one were prepared to undertake such a strange exercise. No doubt, readers will object that the assumptions underlying my prioritization go largely unannounced, are highly contentious, leave much out that others might place greater weight on and presuppose the propriety of criminal law trials as a response to atrocity in the first place. All this I concede, but to guard against the possibility that this precedent’s potentially tremendous implications for this and associated fields might escape detection by relevant audiences, I here set out a brief series of reasons why the case may well live up to the grandiose billing I  assign it. Also, because comparing this case to the Hissène Habre trial in Senegal, the Justice Case at Nuremberg and the prosecution of war crimes in civil wars for the first time at the ICTY would involve unnecessary political insensitivity, I avoid all comparison by merely highlighting the Kouwenhoven case’s claim to the title.

To begin, the Kouwenhoven case brings accountability to the worst elements of the arms trade is ways that are almost entirely unprecedented. I will not labor the characteristics of the dark side of the global trade in weaponry, except to point out that authors like Andrew Feinstein paint a harrowing picture of it. Before now, the very worst weapons transfers to regimes bent on mass violence have taken place in a regulatory vacuum characterized by the almost perfect absence of all forms of accountability. Violations of UN-imposed arms embargoes, for instance, have stimulated almost no legal scrutiny. I say “almost” because a study I undertook together with a team of researchers some years ago of all UN arms embargo violations as documented by UN Panels of Experts since 1993 discovered that of 502 alleged violations, only 1 led to legal accountability for sanctions violations.[1] Against this backdrop, the Kouwenhoven case is the first that holds a nefarious arms vendor responsible for complicity in African atrocities.

In so doing, the case complements other regulatory initiatives. As many will know, the signing of a UN Arms Trade Treaty has sought to make the human rights and humanitarian law records of end-users relevant to the legality of transferring weapons to them. The adoption of the treaty is salutary, long overdue, and aside from its own regulatory effect, it helpfully draws attention to the tremendous social upheaval caused by what Harold Koh once described as “a world drowning in guns.” At the same time, the very idea that a new treaty should be needed to make the human rights and international humanitarian law records of end-users relevant to the legality of transfers will likely leave criminal lawyers and moral theorists slightly perplexed; the pre-existing notion of complicity already achieves that purpose. By enforcing this pre-existing norm, the Kouwenhoven case employs expressive condemnation to transmit the underlying moral principle across surrounding initiatives.

In addition, the contours of the version of complicity the Kouwenhoven trial employs helps overcome the ubiquitous but overly restrictive debate about the doctrine in Business and Human Rights.[2] For many years, litigation brought predominantly under the auspices of the now (nearly?) defunct Alien Tort Statute debated whether an accomplice must share a principal perpetrator’s purpose to carry out an international crime (Kouwenhoven would have to have positively wanted his weapons to bring about international crimes in Liberia and Guinea), as compared with a knowledge standard (which made cognition rather than volition the touchstone for complicity, thereby criminalizing indifferent implication in atrocity for profit). Understandably, Business and Human Rights largely absorbed these standards. As I have argued elsewhere (see here), however, this binary was never a complete articulation of the universe of available standards for complicity globally. The Kouwenhoven case confirms this proposition by applying a less stringent, dual test.[3] Although the case only indirectly relates to human rights, it is important because of the lessons it holds for that adjacent field.

This brings us to the theory of accomplice liability. Like all notions of complicity, the iteration the court adopts in the Kouwenhoven case is theoretically contestable,[4] and one can only anticipate that it will be a central point of Kouwenhoven’s appeal. Nonetheless, whatever debate the standard generates before and beyond the Dutch judiciary, the Kouwenhoven trial is important because it not only brings these even more accountability-friendly variants of complicity to the fore, it also reiterates the pressing importance of theoretical debates about the shape the doctrine should take globally. In earlier work, I entitled a section of an article on this topic “Towards a Moral Theory of Accomplice Liability,” precisely because cases like Kouwenhoven should be grounded in defensible first principles that I am tempted to think should be universal. That a businessman is sentenced to 19 years in prison via application of this doctrine amplifies the need for critical engagement with these ideas, including the need for further thinking about assigning complicity different meanings from one jurisdiction to the next.[5] In both these respects, the case is again critically important.

Significantly, it also involves the Dutch prosecuting their own national for participating in African atrocities, thus marking a move away from the “victor’s justice” paradigm that has long characterised international criminal justice. The term “victor’s justice” evokes the one-sided justice dispensed at Nuremberg despite no shortage of Allied offending, but it remains a recurrent theme in critiques of modern international criminal justice too. The longevity of the critique is understandable given ICL’s uneven record of enforcement at the international level, but what of enforcement locally? Although Kouwenhoven certainly does not offer a silver bullet through the power politics that made internationalising trials necessary in the first place, it certainly marks an important and under-theorized turn away from victor’s justice. In particular, it sounds the emergence of a new element of what Kathryn Sikkink calls a “Justice Cascade” – some states are beginning to take responsibility for war crimes committed by their own nationals, including their businesspeople. From an historical perspective, the shift seems momentous – although the circumstances are very different, the reluctance to assume this responsibility after WWI was so pronounced that it nearly caused a revolution in Germany and a return to war in Europe (see here).

Relatedly, the Kouwenhoven case promises to dilute perceptions that ICL is, to paraphrase Rwandan President Paul Kagame, a neo-colonial tool. In my view, that claim was always overstated, but it is hard to overlook the spectacle of indicting the most senior Congolese and Sudanese political leaders for pillaging property that is epiphenomenal to African armed conflicts without addressing corporate responsibility for the same offense that drives resource wars. In the past, the ICC prosecutor’s explanation for the unique focus on Africans has been that Africa produces the most serious atrocities, taking human suffering as a metric. Yet, as I have argued elsewhere, there is a fallacy in this justification: it assumes that only Africans are responsible for atrocities in Africa. To entertain this assumption is to overlook the long history of commercial implication in and, in especially egregious circumstances, instigation of atrocity in Africa, of which Kouwenhoven is an exemplar. By holding him accountable, this trial goes some way in addressing the fallacy, undermining the neo-colonial critique, and improving the field’s wider claims to legitimacy.

The case achieves this improvement by, at least in this instance, simultaneously overcoming a strangely regressive element of modern ICL. As many have shown, the awareness of corporate implication in atrocity was so prominent in the minds of the architects of post-WWII justice that they very nearly staged a second prosecution of “industrialists” after the main Nuremberg trial. While this business-specific second trial never came to pass, businesspeople were tried within the Nuremberg trial itself as well as in trials staged in occupied zones throughout Europe. Whatever the political aspirations for these processes at the time, for better or worse, their example has not formed a discernable part of the stratospheric ascendance of modern international criminal justice. While public recognition of corporate implication in atrocity grew dramatically after the Cold War, the rebirth of modern ICL over the same period overlooked the commercial angle its earlier incarnation viewed as painfully obvious. The Kouwenhoven trial is a partial correction for this curious regression, which again makes it all the more important in relative terms.

In the end, it is too early to discern the Kouwenhoven case’s overall significance, let alone pronounce on its relative importance even if one were prepared to try ranking the unrankable. With time, it may well prove to be a distracting fig-leaf over a colossal systemic problem, a weak apology for the one-sidedness of ICL’s enforcement globally, or the exception that reinforces the rule of very near total absence of accountability for the worst forms of corporate malfeasance in war. For now, though, it appears more likely that the Kouwenhoven trial is an important milestone in an imperfect, vulnerable, and under-theorized cultural shift in the long struggle to stem atrocity. In case it needs saying, no one should confuse this shift, if it is that, as being a panacea for all the woes of commercial interests in mass violence or delude themselves that criminal justice is anywhere near a sufficient substitute for ethical and political engagement with these problems. Likewise, no one has claimed that cases like this are beyond reproach or that they perfect the system.

In these respects too, the Kouwenhoven trial is important because it invites rigorous, inter-disciplinary scholarly argument for and against this type of accountability.

 

[1] Judgment of Replacement Rol N° 4465-09 (19 January 2012) (Chile’s Supreme Court) <http://www.poderjudicial.cl/modulos/InformacionCausas/INF_causas_corte_supr.php?opc_menu=7&opc_item=2> accessed 2 February 2012. Arguably, the American case against Viktor Bout offers another example, although technically, he was tried for his willingness in a sting operation staged by the FBI rather than for his complicity in any of the many atrocities his weapons smuggling enabled.

[2] My preliminary thoughts about the complicity-debate in Business and Human Rights are online, here.

[3] My kind thanks to Dieneke Vos, who generously provided the following translation of the relevant passage in the Kouwehnoven judgment: “In accordance with established jurisprudence, to convict for complicity, it must be proven not only that the accused person’s intent was directed at the contribution or facilitation of that crime in accordance with article 48 of the criminal code, but also that his intent – whether or not conditional – was directed at the crime committed by a third person, in this case the commission of war crimes.” In other words, under Dutch law complicity requires what the court calls “double intent”: intent to contribute means, and intent relating to the specific crime. The court adds that the accused person’s contribution need not have been indispensable or causal. It is sufficient for the contribution to have “actually encouraged or facilitated the commission of the crime”

[4] For an overview of competing theories as well as recurrent conceptual problems in the theory of complicity, see here. For my attempt to ascertain the meaning of complicity in the ICC statute, see this blog post and the various expert posts it draws upon.

[5] I have argued elsewhere that a multiplicity of complicity standards that can couple with international crimes throughout the world is not desirable. See here. For my (qualified) response with Asad Kiyani to objections that this argument unjustifiably tramples on important social and cultural values that are reflected in diverse criminal doctrine, see here.