Two judgments and diplomatic cables are all that stand between freedom and 19 years in a Dutch prison for convicted war criminal Augustinus Kouwenhoven.
The Dutch arms dealer, who smuggled weapons for Liberian strongman Charles Taylor’s regime during Sierra Leone’s bloody civil war, on Monday made a last-ditch effort to convince the Cape Town Magistrate’s Court not to admit the documents in his extradition trial.
Kouwenhoven’s senior counsel, Anton Katz, argued that the diplomatic cables requesting the 76-year-old’s extradition and the accompanying judgments did not meet South African standards of evidentiary law.
Kouwenhoven already suffered a major defeat in a leave-for-appeal application in the Western Cape High Court for his detention and arrest, and now faces extradition to the Netherlands to serve out his jail sentence.
Dutch war criminal fights extradition in Cape Town magistrate’s court
Charles Taylor is serving a 50-year sentence in England for leading Sierra Leone into an apocalyptic hell of rape, cannibalism, pillage, and murder.
State prosecutor Christopher Burke said on Friday that Kouwenhoven was convicted and sentenced by the Hertogenbosch Court of Appeal to 19 years’ imprisonment, which was subsequently finally and irrevocably confirmed by the Supreme Court of the Netherlands in its judgment of December 18 2018.
His offences included “complicity in co-committing violations of the laws and customs of war, while the offence results in death or involves rape, committed multiple times”.
“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 ‘common’ article 3 of the Geneva Conventions,” said Burke.
“Between July 21 2001 until May 8 2002 in Buchanan, Liberia, this involved trade in and supply of, amongst other things, weapons, ammunition and military equipment – which included, amongst others, AK-47s, rocket-propelled grenades and general machine guns – to Charles Taylor and/or his armed forces and employees of Kouwenhoven’s Oriental Timber Company (OTC).”
Advocate Darryl Cooke argued that a default requirement for admissible evidence in South Africa is that the evidence be submitted with an accompanying affidavit.
“Anyone with knowledge of the contents can write an affidavit,” said Cooke.
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Magistrate Ingrid Arntsen asked him what such an affidavit should look like, also pointing out that affidavits were often themselves of a very low quality and not necessarily a standard of reliability.
The defence also asked that Burke point out which items, from a bundle of documents sent by the Dutch authorities sealed with a wax stamp, he was going to rely on.
But Burke argued that by requesting that the state “pull apart” the bundle of documents, thereby altering the integrity of the bundle, the defence was creating another obstacle to latch onto if they were to take the matter on appeal.
Arnsten also questioned whether it was not taking it “a step too far” by demanding that a foreign state with its own standards of evidence and requirements for extradition (in this case the European Convention) also needed to comply with the local laws of the country from which they were requesting extradition.
“You are putting the bar extremely high for any nation under the European Convention to also have to know which laws in South Africa they have to adhere to,” she said.
Arnsten is expected to e-mail the prosecution and the defence her ruling on the admissibility of the documents on January 10.
Depending on her decision, the extradition hearing is expected to continue between January 16 and 20.