The Difficulties of Exercising Extraterritorial Criminal Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia

Abstract

AbstractReports of the NGO Global Witness in which the implication of the Dutchman Kouwenhoven in the civil war in Liberia was exposed served as the lead for the Dutch Prosecution Office to start a criminal case against this national. In June 2006, the Dutch businessman Guus Kouwenhoven was convicted in first instance for the violation of an arms embargo, but acquitted of the count on war crimes. On appeal, Kouwenhoven was fully acquitted of all charges. In its judgment quashing the prior conviction, the Dutch Court of Appeal heavily criticized the Public Prosecutor and observed that the case against Kouwenhoven was built on quicksand. Even though not based on universal jurisdiction, 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 this note, it is argued that when adjudicating such foreign cases, national judges being unfamiliar 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.