6. Trading goods in violation of international sanctions
A company may be held liable for buying, selling or transporting products, commodities or assets originating from or going to a country, group or individual under international sanctions. The most common embargo is on arms, but increasingly sanctions are imposed on specific commodities, such as diamonds, timber, and on financial assets.
Article 41 of the United Nations Charter authorizes the Security Council to impose measures to maintain or restore international peace and security and may require Members States of the U.N. to “apply” such measures including targeted sanctions. Pursuant to Article 25 of the Charter, Member States agree to accept and carry out Security Council decisions. Violations of UN sanctions could therefore be subject to domestic enforcement, potentially in the state of the nationality of the offender or states where the violations occur.
Case 6.1 The Netherlands v van Kouwenhoven
In 2006, a Dutch court convicted a Dutch businessman Guus van Kouwenhoven of violating UN sanctions. This conviction was overturned on appeal in March 2008.
The case was based on the defendant’s time as Director of Operations of the Oriental Timber Company (OTC) and of the Royal Timber Company (RTC) in Liberia, the biggest timber operations in Liberia. It was alleged that while serving in these positions van Kouwenhoven had close ties with Charles Taylor and facilitated the import of arms for Taylor in contravention of UN Security Council resolutions. The United Nations Security Council had issued an order in 2001 banning van Kouwenhoven from traveling, qualifying him as “an arms trafficker in breach of Resolution 1343 of the Security Council” in addition to being “someone who supported the efforts of ex-President Taylor in destabilizing Sierra Leone to gain illegal access to its diamonds”. He was placed on the international ‘freeze list’ requiring banks to block his assets. Van Kouwenhoven was arrested in the Netherlands on March 18, 2005.
According to the prosecution “the militias hired by the former timber companies belonging to this Dutchman, are accused of participating in the massacre of civilians...Guus van Kouwenhoven is accused of having supplied the arms to the militias to enable them to carry out these crimes” (translation from Dutch).
The defendant was charged with the following offences:
Complicity in War Crimes: “The charges refer to a number of actions that have been penalized under the Criminal Law in Wartime Act (of the Netherlands) …(and )...articles 47 (complicity) and 57 of the Penal Code;”
Sanctions violations: Economic Offenses Act…articles 1, opening lines and under 2° (old), 1, opening lines and under 1°, 2 and 6 of the; articles 2 (old), 2, 3 (old), 3 and 13 of the Sanctions Act 1977;
Sanctions violations: Article 2 of the Liberian Sanctions Regulations 2001 of The Netherlands;
Sanctions violations: Article 2 of the Liberian Sanctions Regulations 2002 of the Netherlands;
Arms trafficking: ML1 and ML2 of the Schedule to the Import and Export Decree on Strategic Goods.
Status
On June 7, 2006, the Dutch court acquitted van Kouwenhoven of the charges of war crimes. However, he was sentenced to an 8-year prison term, for having violated the UN arms embargo on Liberia. Both prosecution and defense appealed and on March 19, 2007, van Kouwenhoven was conditionally released pending his appeal. The appeal restuled in his acquittal in March 2008.
"A company risks enabling mass atrocities when it
provides resources, goods, services, or other forms
of practical support that help sustain crimes against
humanity or genocide." Human Rights First has released advice to companies on the risks of contributing to the world's worst crimes.
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See also a BBC report "From Our Own Correspondent".
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