Close This website uses modern features that are not supported by your browser. Click here for more information.
Please upgrade to a modern browser to view this website properly. Google Chrome Mozilla Firefox Opera Safari
your legal news hub
Sub Menu
Search

Search

Filter
Filter
Filter
A A A

Extradition battle swings against Dutch war criminal

Publish date: 12 January 2021
Issue Number: 904
Diary: IBA Legalbrief Africa
Category: General

An extradition battle between Dutch war criminal Guus Kouwenhoven and prosecutors 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. A Daily Maverick report notes the pre-Christmas finding presents a major legal stumbling block for Kouwenhoven, who has been based in SA for several years, and from where he has been fighting against extradition. In February 2020, the Cape Town Magistrate's Court found in Kouwenhoven’s favour, ruling that he could not be extradited because SA’s Extradition Act only allowed for someone to be extradited if the alleged offences were committed within the state wanting the extradition approved – Netherlands sought his extradition although the crimes he was previously convicted of had occurred in Liberia. However, the High Court judgment found ‘… the (Cape Town Magistrate's 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'. Kouwenhoven’s legal problems in SA 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,’ the judgment read.

A pivotal issue before the court was whether reference to jurisdiction in the Extradition Act was confined only to territorial jurisdiction. The 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.’ Thus, notes the DM report, 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.

Full Daily Maverick report

We use cookies to give you a personalised experience that suits your online behaviour on our websites. Otherwise, you may click here to learn more, or learn how to block or disable cookies. Disabling cookies might cause you to experience difficulties on our website as some functionality relies on cookie information. You can change your mind at any time by visiting “Cookie Preferences”. Any personal data about you will be used as described in our Privacy Policy.