An extradition battle between Dutch war criminal Guus Kouwenhoven and prosecutors in South Africa has swung in their favour, with the Western Cape High Court setting aside a previous finding that he should not be sent to the Netherlands.
The ruling made on Wednesday likely presents a major legal stumbling block for Kouwenhoven, who has been based in South Africa for several years, and from where he has been fighting against extradition.
In February this year, the Cape Town Magistrates’ Court found in Kouwenhoven’s favour ruling that he could not be extradited because South Africa’s Extradition Act only allowed for someone to be extradited if the alleged offences were committed within the State wanting the extradition approved.
In other words, the Netherlands could not have him extradited because crimes he was previously convicted of had occurred in Liberia.
But the Western Cape’s Director of Public Prosecutions, via Advocate Christopher Burke, pushed ahead with an appeal against the magistrate’s court decision. At the same time, Kouwenhoven’s legal team brought a review of the State’s right to appeal in extradition matters.
On Wednesday it was ruled in the Western Cape High Court that the State’s appeal had succeeded, and the defence’s review application was dismissed.
“It follows that the [Cape Town Magistrates’ Court] erred in law in finding that in terms of [a section] of the Extradition Act Mr Kouwenhoven was only liable to be surrendered for extradition if the crimes for which he was convicted by the Dutch court were committed within the territory of the Netherlands,” the judgment said.
The extradition matter is now expected to go back to the Cape Town Magistrates’ Court where the finding of the high court needs to be implemented.
This could see Kouwenhoven, who is not in custody at the moment, detained.
At the start of December the issue of jurisdiction relating to his extradition hearing had been focused on during the appeal and review proceedings that culminated in Wednesday’s judgment.
It had basically been argued that Kouwenhoven could potentially be prosecuted in South Africa or Liberia, where he was said to have committed crimes.
But Wednesday’s judgment said: “I regard as cynical the argument that justice will be served by leaving the prosecution either to South Africa or to the country in which the crimes were committed.
“Crimes attracting universal jurisdiction are not infrequently perpetrated in countries which, even if they are not failed states or corrupt, lack resources to prosecute international fugitives. The government of the country might be one which the alleged criminal has assisted. That country cannot be compelled to make an extradition request.”
It said South Africa also had financial constraints and, taking other issues into consideration, including the availability of witnesses and nationality of the accused, it was sometimes preferable for a prosecution to be carried out somewhere other than this country or the country where crimes occurred.
Kouwenhoven’s legal problems in South Africa stretch back to early 2017 – in April that year a Dutch court convicted him for “the illegal supply of weapons to the regime of Charles Taylor in Liberia and Guinea and of participating in war crimes in those countries”.
“The crimes of which he was convicted were not committed within the territory of the Netherlands. They were, though, crimes in respect of which the Netherlands under its law exercised extraterritorial jurisdiction,” Wednesday’s judgment read.
“Mr Kouwenhoven continues to maintain his innocence and complains that the proceedings pursuant to which he was convicted were unfair. We are not concerned with that.”
By the time he was convicted and sentenced in the Netherlands, to 19 years in jail, he was based in Cape Town.
His legal representative Gary Eisenberg previously told Daily Maverick this case was under appeal in the European Court of Human Rights.
Kouwenhoven was arrested in Cape Town in December 2017 because the Netherlands wanted him extradited there. In November 2019 an extradition hearing proceeded in the Cape Town Magistrates’ Court.
One of Kouwenhoven’s defences was that he should not be extradited to the Netherlands because the crimes he allegedly committed, and was sentenced for, had not unfolded there.
This is what the magistrates’ court had upheld in February resulting in Kouwenhoven being discharged, and what the State effectively and successfully appealed.
Following the February magistrates’ court ruling, the State had requested that court to state a case in terms of a section of the Criminal Procedures Act.
This request also related to three questions of law.
The first question was whether a judicial officer conducting an extradition inquiry, or the Minister of Justice and Constitutional Development, was empowered to question the jurisdiction of a state requesting someone’s extradition.
The second question was whether jurisdiction was a relevant consideration in an extradition inquiry in which the person had already been convicted by the requesting state, while the third question was whether reference to jurisdiction in the Extradition Act was confined only to territorial jurisdiction.
This third question was pivotal.
Wednesday’s judgment addressed this, saying: “This is the important question of law in this appeal. The answer is that the requirement in [a section] of the Extradition Act that the offence should have been committed ‘within the jurisdiction of’ the requesting state is a requirement that the requesting state should have jurisdiction to try the person in question for the offence, including where applicable the jurisdiction to try such person for an offence committed outside the territory of the requesting state.”
This basically meant, according to the Western Cape High Court, the Netherlands had proper grounds to request his extradition, even though the crimes Kouwenhoven was convicted of had not occurred there.
“A broad interpretation of ‘jurisdiction’ in the Extradition Act would be more consistent with international law, since it would facilitate the extradition of persons charged with or convicted of crimes against humanity where the requesting state is exercising a universal jurisdiction consistent with international law,” the judgment read.
Kouwenhoven also faces other legal issues in South Africa.
In November Home Affairs withdrew his visa and declared him an undesirable person in South Africa. This was after the Southern African Litigation Centre approached the Western Cape High Court in 2019 to challenge the granting of his visa.
Even though he has been declared undesirable, Kouwenhoven cannot simply be deported as there are other legal issues in South Africa that still need to be concluded. DM
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