8. And Justice for None?
By the late 2000s some of the extended Merex network’s nefarious activities – selling arms to most sides in Yugoslavia, gun running in Liberia and Sierra Leone, and dealing diamonds with Al Qaeda – had been exposed by the UN and NGOs such as Global Witness and Amnesty International. Viktor Bout, known as the merchant of death, was used as the basis for a Hollywood blockbuster, Lord of War, starring Nicolas Cage. The term ‘blood diamonds’ seeped into the popular consciousness, propelled by the Hollywood fictionalization of the horrors of Sierra Leone, featuring a scowling, heavily accented Leonardo Di Caprio. Though many activities remained unexamined – the history of Joe der Hovsepian and the evil machinations of Nicholas Oman, for example – the once secret netherworld of arms dealers and swindlers had been exposed to the public gaze.
And yet not a single member of the network had faced a successful prosecution for arms dealing. Some had been arrested and even found guilty on other charges, but none had yet faced the judicial consequences of their arms trafficking which wreaked such havoc and caused such suffering around the world.
The reasons for this are both legal and political. A number of the few prosecutions initiated against network members foundered on the treacherous rocks of jurisdiction, itself a function of a very weak international regulatory and legal framework. Because arms brokers operate from many locations around the world, transfer money, weapons and other commodities across multiple jurisdictions through intricate channels, and are seldom physically present when the arms are delivered, it is easy for courts to rule that the offences fall outside their ambit. Despite the European Union, for instance, adopting a strong common position on arms trafficking, the lack of integrated legal mechanisms to prosecute dealers across jurisdictions has left these purveyors of death largely untouched.
An equally difficult issue is the collection and nature of evidence from conflict zones. A court in Holland, for example, rejected ‘conflicting’ evidence gathered from informants in war zones without accounting for the complex context of the investigation or how local conceptions and descriptions of events could be misunderstood by Western eyes.1
These difficult legal issues are often buttressed by a distinct lack of political will to prosecute arms dealers on the part of many countries. The early history of Merex illustrates how dealers are often protected from prosecution by their links to state intelligence agencies or other quasi-state actors. In extreme cases dealers are integral components of organized crime networks that include political actors, while others are or have been useful to powerful politicians or officials, who explicitly or tacitly condone their actions. Their apprehension and prosecution could result in severe embarrassment and politico-legal difficulties for their abettors. With friends in high places some arms dealers have been able to evade arrest and prosecution throughout their illicit careers and beyond.
Viktor Bout’s evasion of justice for many years is an exemplar of how these issues have combined to bedevil the prosecution of arms dealers.
In February 2002, Belgian authorities issued an Interpol ‘red notice’* that they were seeking the arrest of Bout on charges of money laundering and arms dealing. In theory, if he was in a member state, local police authorities were obliged to arrest him and hand him over to Belgium. Soon after the 9/11 attacks Bout’s African colleague, Sanjivan Ruprah, had been in contact with US intelligence officials, starting a long-running correspondence. Ruprah was even flown into the US at one stage for a debriefing, bypassing the passport and immigration checks that would have identified him on the UN travel ban list. He promised to provide his US contact, ‘Brad’, with a wide range of intelligence.2 This included the movements of the Taliban and Al Qaeda in Afghanistan, which he and Bout had insight into as a consequence of supplying arms to these groups.3 With this new knowledge and their extensive network, Bout and Ruprah would be useful ‘dirty’ contacts in the War on Terror.
Whether US Intelligence ever did an official deal for information with Bout and Ruprah is unclear but it is suspected that US Intelligence interventions prevented Bout’s arrest for many years. So deep were these suspicions that the Belgian authorities attempted to keep their arrest warrant secret from leaky US intelligence networks.4 Belgian and European authorities joined forces with British Intelligence under the aegis of a new taskforce known as Operation Bloodstone to monitor Bout’s frequent travels in violation of his travel ban. In late February 2002, firm intelligence identified that Bout would be flying aboard one of his planes from Moldova to Athens. A plan was hatched to arrest him when he landed in Athens and bring him to justice in Belgium.5
Soon after Bout’s flight took off, British field agents sent an encrypted message to London informing them that ‘the asset’ was in the air. Minutes later the plane changed direction, abandoning its flight plan. It disappeared into mountainous territory out of reach of local radars. The plane re-emerged ninety minutes later and landed in Athens. When police boarded the aircraft it was empty except for the pilots. Twenty-four hours later Bout was spotted 3,000 miles away in the Democratic Republic of Congo. Bout’s crew had been informed of the plan to arrest him in Athens and had arranged to drop him off safely elsewhere. For a European investigator all signs pointed towards US complicity: ‘There were only two intelligence services that could have decrypted the British transmission in so short a time,’ he explained. ‘The Russians and the Americans. And we know for sure it was not the Russians.’6
Shortly after Bout’s narrow escape he moved back into the safety of his ‘home territories’ in Russia. Russian officials were reluctant to see Bout prosecuted as he had close contacts within the Russian establishment through whom he had been able to source surplus matériel for years. In 2002, in response to a request to reveal his whereabouts, Russian authorities declared that Bout was definitely not in Russia.7 As they were issuing this definitive denial Bout was giving a two-hour interview in the Moscow studios of one of the country’s largest radio stations. Shortly afterwards Russian authorities released a second clarifying statement. It was a thinly veiled message, in classic Orwellian doublespeak, that Bout was now untouchable. With this Russian protection – known locally as krisha – Bout was able to resume operations, albeit with a higher degree of caution. As a consequence, as recently as 2006, Bout was sending weapons to Islamist militants in Somalia and Hezbollah in Lebanon.8 During this period he was also providing air-freighting services for the US in Iraq and Afghanistan.9
By 2007, Bout’s notoriety had caught the attention of the US Drug Enforcement Administration (DEA). Tasked with fighting the country’s ‘war on drugs’ the DEA had its remit enhanced after 9/11 to pursue aggressive sting operations against those who were engaged in a range of activities that supported ‘terrorists’, of which drug trafficking might be only a small part. Its vast infrastructure – the DEA has more foreign bureaus than the CIA – is especially useful in pursuing the complex multinational crimes from which arms dealers profit. So it proved with a sting that was undertaken in 2006 against the semi-retired arms dealer Monzer Al-Kassar.
Al-Kassar got his start in the trade when the government of Yemen asked him to buy rifles and pistols from Poland, where, in the 1980s, he served as commercial attaché for the Yemenis. He assisted the Polish military with illegal arms transactions until 2002.10 Besides his involvement in Iran–Contra (see Chapter 2), he supplied weapons to his friend Abu Abbas, the leader of the hijackers of the Achille Lauro cruise ship in 1985 who murdered a disabled American passenger, Leon Klinghoffer. And he violated the UN arms embargoes in Croatia, Bosnia and Somalia. He may have been involved in procuring components of a Chinese anti-ship missile for Iran, according to records cited by the Washington Post. A report in the Library of Congress charges that he delivered explosives to a group headed by a known terrorist in Brazil and that he had earlier sold arms to Iranian militias in Cyprus.11
He was well connected to the highest echelons of the Syrian state, which his father had served as a diplomat. But most crucially he was accused of supporting the Sunni insurgency in Iraq.12
The DEA used a turned former member of the Black September group (a Palestinian paramilitary group with whom he had worked previously) to build a relationship with Al-Kassar, claiming to have a client who needed arms. The client was represented by two Guatemalan DEA informers posing as FARC (Revolutionary Armed Forces of Colombia) representatives. FARC had long been listed as a terrorist organization by the US. This meant that any attempt to supply them with arms was, in legal terms, participation in a conspiracy to kill US nationals.13 Over a series of recorded discussions and meetings with Al-Kassar, the agents agreed a deal for the supply of nearly 12,000 weapons, including thousands of machine guns, rocket-propelled grenades and surface-to-air missiles.14 They persuaded the arms dealer to travel to Madrid to meet ‘a senior FARC leader’, where he was arrested by Spanish police under instructions from the Americans. His intelligence links in Spain and other countries, who used him for information, as they so often do arms dealers, failed to protect him. In June 2008, Al-Kassar was flown in shackles from Spain to the US, where he faced trial.15
As Viktor Bout had previously air-dropped weapons into the Colombian jungle for FARC in 1998 and 1999, it made sense to use a similar ruse in an attempt to lure the Russian from the safety of his krisha. A DEA agent, Michael Braun, felt it was possible to use a similar scam twice, based on a psychological insight he had gained from years pursuing the world’s ‘potpourri of scum: The more arrogant they are, the better off you are. Guys like that say to themselves, “There’s no way in hell they’ll do that a second time.”’16
After months of intensive planning based on analyses of Bout’s past behaviour, the sting began in earnest in November 2007. The first step was to contact somebody close to Bout, in this case Andrew Smulian, a mysterious South African national in his mid-forties who had previously worked as a military pilot.17 According to one of the DEA’s key informants, codenamed CS-1 (Confidential Source 1), Smulian was still working closely with Bout and could act as a means of access. CS-1 had previously worked with Smulian and had interacted with Bout. In the mid-1990s, Bout had approached CS-1 and Smulian to fly from Bulgaria and air-drop crates of supplies over Chechnya.18 They refused as ‘while never explicitly told what was inside the crates, CS-1 understood that they contained arms shipments’.19 CS-1, whose identity remains hidden, had maintained intermittent contact with Bout thereafter, on one occasion sharing a plane for a flight to Dubai from Africa.20
In November 2007, under the direction of the DEA, CS-1 emailed Andrew Smulian claiming to have a business opportunity for Bout. Smulian replied that the Russian was interested and had suggested that Smulian meet up with CS-1 to discuss the deal. In a December email Smulian confirmed that he ‘spoke to Boris, and anything is possible with farming equipment [assumed to be a euphemism for arms] … I don’t think he can move stuff around, but it may be that he can get his hands on items which you require.’21 Smulian advised CS-1 of the need for extreme caution, confirming that ‘Our man has been made persona non-g[rata] – for the world through the UN. The supporting action through the US, Europe, and Switzerland. All assets cash and kind frozen, total value is around 6bn USD, and of course no ability to journey anywhere other than home territories.… we should not make any use of any form of contact, and all existing and past comms are electronically interrogated and copied.’22
Smulian, CS-1 and two men masquerading as his colleagues, CS-2 and CS-3, met in person for the first time in January 2008 in Curaçao, a balmy island off the coast of Venezuela. CS-2 and CS-3 posed as representatives of FARC, a ruse that Smulian bought without question. The fake representatives gave Smulian a list of the weapons FARC wanted to buy. In addition to the usual machine guns, it also included surface-to-air missiles. If Smulian agreed to obtain these the deal would take on grave consequences, as the sale of surface-to-air missiles to any party not contracting directly with the US is illegal under US law.23 To further cement the deal, and as a gesture of their goodwill, the DEA agents gave Smulian $5,000 in cash to defray the costs of his travel.
With the shopping list agreed, a further series of meetings was scheduled to discuss the terms of the trade. At one of these meetings, in Copenhagen in January, Smulian confirmed that they would soon have a meeting with Bout, spelling out the Russian’s name for CS-2 and affirming that he was known as ‘the merchant of death’. Smulian confirmed that ‘100 pieces’ were immediately available, presumably referring to the missiles. He also passed on an offer from Bout to launder FARC’s money for the transaction, suggesting a fee of 40 per cent of the total funds laundered.24
At a meeting in Romania a few days later Bout attempted to increase the size of the deal. After he had spoken on the phone to CS-2 about potential meeting spots, Bout asked to speak to his business partner. Smulian replaced the phone in a state of excitement, confirming that 100 Igla missiles were definitely available and then offering ‘special helicopters that can wipe out their helicopters’, training in the use of the helicopters and more modern rocket launchers capable of firing three missiles simultaneously.25 The weapons were to be supplied by an arms manufacturer in Bulgaria and would be air-dropped, buoyed by 200 parachutes, into Colombia during a fly-over from Nicaragua to Guyana. If FARC did not want their money laundered, Bout suggested he could pick up the cash directly from them as he always had an empty plane near their territory.26
It would be a further agonizing month before Bout was finally drawn out of hiding. The fake representatives insisted that they would only do the deal if they were able to meet Bout in person. A planned rendezvous in Bucharest, Romania, fell through: Bout’s contact in the country was about to organize a visa for him when a documentary appeared on Romanian TV identifying Bout’s connections there. The contact warned that Romania was now too hot for a Bout visit. But finally an arrangement to meet was confirmed. The DEA agents, in contact with Bout via his newly created Yahoo email address, informed him that they would be travelling to Thailand for business at the end of February.27 Bout, who seemed eager to move the deal forward, called CS-2 directly, despite his fears over surveillance, and agreed to meet the agents in Bangkok. After months of painstaking work the DEA had finally smoked the merchant of death out of his protective krisha. In late February they hurriedly submitted an arrest warrant to the New York courts and headed to Thailand to set up their operation.
Bout arrived in Bangkok on 6 March 2008 and checked into the five-star Sofitel Hotel in the city’s central business district just before noon. DEA agents who had been monitoring the site since 5 a.m. watched as Bout made his way to reception and booked a conference room on the twenty-seventh floor of the building for 3 p.m. After freshening up, the Russian met with CS-2 and CS-3 at a bar in the hotel. Over drinks: ‘Bout stated, in sum and substance, that the fight against the United States was also his fight and that he intended to supply the FARC with the arms to shoot down American-made helicopters.’28 Turning on the salesman’s patter he sang the praises of an ‘ultra light’ two-seater fighter plane that could be equipped with grenade launchers and missiles, and was perfect for downing helicopters. They moved upstairs to the conference room. To clinch the deal Bout summarized that for ‘fifteen million’ he would supply ‘700 to 800 surface-to-air missiles, 5,000 AK-47 firearms, millions of rounds of ammunition, various Russian spare parts for rifles, anti-personnel land mines and C-4 explosives, night-vision equipment, ultra-light airplanes and unmanned aerial vehicles’.29 Producing pamphlets detailing their specs, Bout also recommended that FARC buy two cargo planes, an Antonov and an Ilyushin, in order to transport their own weapons in future.
As the sales pitch ended swarms of Thai police and DEA agents invaded the conference room. Bout offered no resistance. As he was handcuffed, he muttered: ‘The game is over.’30 He was unceremoniously marched through the lobby, which was packed with DEA agents congratulating each other and CS-2 and CS-3. The next day Andrew Smulian was picked up by officers in New York and taken to the District Court, where his arrest was confirmed.31 Smulian reportedly agreed to a plea bargain with US officials in return for a reduced sentence and witness protection and has revealed all about Bout’s role in the operation.32
With a key informant and so much explicit evidence the US authorities should have had little problem successfully prosecuting Bout. The speedy trial and conviction of Monzer Al-Kassar would have encouraged them. As with Al-Kassar, it was crucial to arrange for Viktor Bout to be extradited quickly to face justice in the US courts. The first extradition request was filed in April 2008, just as Thai authorities decided not to prosecute Bout. An extradition requires not only that the offence is punishable by both the host and the extraditing country, but also that the offence is not being prosecuted by the host country. Attached to the US extradition request were a series of ‘incriminating’ documents seized from Bout at the time of his arrest, including articles about FARC, a map of South America and his own handwritten notes of the meeting.33
In August 2009, the Thai courts finally pronounced judgment, ruling against extradition. Central to the case was whether the alleged crimes constituted an overtly criminal, rather than political, act. The extradition treaty between the US and Thailand states that extradition cannot occur if ‘the extradition is requested for political purposes’ or the crime was ‘an exclusively military offence or a political offence’.34 The Thai judges determined that providing support to FARC had to be considered a political act, rather than a merely criminal endeavour. Their view was informed by the fact that the Thai government does not identify FARC as a terrorist organization and the court could not act according to the dictates of foreign policy rather than the law.35 The judgment may have been informed by more than narrow legalistic concerns. Realpolitik could have played its role as well. For, as the trial unfolded, considerable pressure was brought to bear on the Thai authorities, with Russian efforts countervailing American demands.
In Russia, Bout’s extradition was strongly opposed. Key political players lined up to defend Bout, portraying the charges against him as a sordid US political plot. ‘Just because the cold war is over doesn’t mean the competition between military-industrial interests has ended,’ said Sergei Markov, a pro-Kremlin deputy of the Russian State Duma. ‘It’s not about ideology, but it is about competing interests. Russia extends official support to Bout because he’s a citizen, and because the Russian public doesn’t see him as any kind of criminal. They expect him to be supported.’36 Bout played to the gallery, frequently linking his incarceration to unpopular aspects of US policy, on one occasion expressing the fear that extradition would lead to his internment at Guantanamo Bay.37 One particularly vocal, high-profile supporter was Vladimir Zhirinovsky, the ultra-nationalist who had made use of the Merex network’s Nicholas Oman in an attempt to secure nuclear weapons, and who had a working relationship with Bout. Zhirinovsky, as Deputy Chairman of the Duma, had sent a number of telegrams to the Thai Prime Minister, requesting Bout’s release and suggesting a meeting in Moscow to discuss the issue.38 The Duma too issued a statement damning Bout’s continued arrest. Rumours were rife that Russia was offering Thailand considerable inducements to release Bout, including cheap oil and even cheaper military equipment.39
In February 2009, roughly six months prior to the decision of the Thai courts, a number of Representatives from the US Congress wrote an open letter to the newly installed Secretary of State, Hillary Clinton, and the Attorney General, Eric Holder. The letter pleaded that ‘this international arms dealer’s extradition [should] remain a top priority for your Departments and the United States government’.40 Two months after the judgment President Barack Obama used a trip to Asia to canvass for Bout’s swift extradition, while the US Deputy Attorney General, David Ogden, commented that Bout facing charges in the US was ‘still a matter of great importance to the United States’.41
This political horse trading raises questions both about the judgment and the pressures brought to bear on the judges. At one point in the court proceedings the Thai judge complained that he was in a ‘tough position [as] bilateral ties with Russia and the United States could be at stake’.42 For Doug Farah, the judgment was a recognition that the judge ‘feared the Russians more than the Americans’ rather than an objective application of legal principles.43 The American Congressman Ed Royce was even more forthright in his view of the judgment: ‘While the Thai Foreign Ministry has stated that the extradition request meets the conditions of the Thai–American extradition treaty, the Russian government has been pushing hard for Bout’s release. Politics seems to have trumped the law. Something is rotten in Bangkok.’44
The soundness of the judgment was further questioned because of a number of additional statements that went beyond the court’s core mandate of examining the extradition request. One such example was that the court did not find the charges against Bout believable. ‘The accused was charged with selling [a] large quantity of war weapons and fighter aircraft [of which] the price is too high to believe it can be illegally traded. It is in doubt where to find an illegal source of [such] large quantity,’ stated the judge, displaying a remarkable ignorance of the illicit arms trade.45
While the Thai Public Prosecutor’s Office immediately gave notice to appeal the decision to reject extradition, the response of US authorities suggested that they had little confidence in its likely success. Instead, the US issued a second arrest warrant on different charges in March 2010. This gave them the option of lodging another extradition request if the appeal found in Bout’s favour.46 Reflecting the difficulties of prosecuting arms dealing, the newly formulated charges focused on Bout’s and his alleged colleague Richard Chichakli’s violation of a US presidential order freezing the assets of both in the US. This injunction on their assets had been passed in response to UN sanctions placed on Bout. The new charges claimed that Bout had used a newly formed company, Samar Airlines, to purchase two aeroplanes – a Boeing 727 and a Boeing 737 – from a Florida-based company at a cost of just over $17m. In addition, Samar had used a Florida company to provide the crew to fly the planes from the US to Tajikistan. According to US prosecutors, while Bout’s name did not appear on Samar’s registration documents, he was the ‘real’ owner of the company.47
On 20 August 2010, the Appeals Court in Thailand overturned the earlier decision, saying FARC was a proscribed terrorist organization and that Thailand was obliged to extradite Bout in accordance with treaties with the US.48 Bout’s lawyer immediately announced his intention to lodge a petition with the Thai government to block the extradition. ‘The defence believes Bout will not be safe in the US and he will not receive a fair trial,’ the lawyer said. The Russian Foreign Minister, Sergey Lavrov, fulminated that Russia ‘regret[s] this unlawful, political decision’, which he argued was made ‘under very strong external pressure’. He repeated, as he has on many occasions, that Russia continued to work for Bout’s return to his home country.49
Bout responded defiantly, shouting: ‘We will go to court in America, and we will win.’50 However, there was a final legal twist in the tale. As a US government aircraft sat on the tarmac at Bangkok airport, waiting to transport Bout to the US, the Thai Attorney General warned that the Russian could not be moved. The sticking point was the secondary charges that the US filed against Bout, as insurance against losing the primary case. The Attorney General insisted that all legal proceedings against Bout had to be completed before he could be extradited. But the terms of his extradition stipulated that if he was still in Thailand three months after the court order, he had to be set free.
Bout’s lawyers tried every legal gambit imaginable to prolong his stay in Thailand. But as 20 November loomed, with the Russian media trumpeting Bout’s imminent freedom,51 the Thai Cabinet acted. Four days shy of the deadline, the Cabinet approved the extradition, and within hours of the decision Bout was removed from his prison cell, placed in a bulletproof vest and escorted to a chartered plane by police commandos in balaclavas and combat gear. He was handed over to DEA agents and ushered aboard the plane to begin his journey to New York and American justice.
Bout’s wife, Alla, rushed to the prison with his lawyer but did not get to see him. ‘The operation was secret,’ she told the Russia Today television channel. ‘The cabinet ordered the extradition of Viktor Bout, even though the prime minister of Thailand had said that while court proceedings are ongoing, he wouldn’t be extradited … he was shipped to the United States as if he was just a thing, without his documents and without the Russian embassy being informed. The operation was so quick because it is illegal under Thai law. I plan to appeal.’ The Russian foreign ministry concurred, describing the ‘illegal extradition, a result of the unprecedented political pressure by the United States’.52
While the Department of Justice certainly pulled out all the stops to have Bout extradited, in the years since the Russian was arrested questions have been raised about the US’s real desire to prosecute and Bout’s levels of political protection. I was told by two separate sources in different US government departments that, especially during 2008 under the Bush administration, there were profound differences within the Department of Justice and between the department and the Pentagon about the initial ensnaring of Bout and the efforts to extradite him. Supposedly, the Pentagon and the intelligence agencies feared Bout would reveal the extent of his historical involvement with them, while the DEA and others in the Department of Justice believed that Bout’s arms trading constituted a real threat to US homeland security.53 As the Washington Post commented in response to the successful extradition decision: ‘Oh, the stories this Russian could tell.’54
* * *
On 17 March 2005, the Dutch arms dealer Gus Kouwenhoven was dramatically arrested in Holland while waiting for a ride at the Rotterdam train station. Kouwenhoven had long piqued the interest of organizations examining the morass of human misery in Liberia and Sierra Leone. As early as 2000 he was named by UN investigative reports as ‘responsible for the logistical aspects of many of the arms deals’ undertaken by Charles Taylor.55 Further investigations painted a picture of a man in the ‘inner circle’ of Charles Taylor’s regime who had used monies raised from his logging interests to financially support the rule of the NPFL.56 It was also reported that Kouwenhoven had helped ship weapons into the country from China via the Liberian port of Buchanan, a believable claim as his company, the Oriental Timber Corporation (OTC), owned at least two ships and effectively managed the port.57
Revelations by NGOs and the UN led to an investigation by Dutch authorities in which they travelled to Liberia to interview witnesses, before filing a range of serious charges against Kouwenhoven. The indictment accused the controversial Dutchman of war crimes in contravention of the Geneva Convention. These included making use of OTC’s security personnel to fight a number of skirmishes from 2000 to the end of 2002. In one such incident, Kouwenhoven was accused of being party to a vicious assault on the town of Gueckedou in Guinea. It was claimed that during the attack shots were ‘randomly’ fired into the town without distinction between civilians and soldiers. A house packed with prisoners of war was set alight and another building filled with locals who had surrendered was destroyed with grenades. One or more babies died after being hurled against a wall and at least three people were beheaded after they had given themselves up.58 Kouwenhoven was considered an active participant in the conflict, either by directly ordering, or allowing Charles Taylor to order, troops employed by OTC into battle, selling and supplying arms for the attacks, putting a helicopter at the disposal of Taylor and his inner circle, and providing material support in the form of money and cigarettes or marijuana to Taylor’s troops and accomplices.59
In addition to the three war crimes charges, Kouwenhoven was also accused of two further counts of arms dealing. It was claimed that he was materially involved in supplying arms, other equipment and military technology in defiance of UN sanctions and Holland’s own Economic Offences Act. While the arms-dealing offences would most likely be punished with a decade or so behind bars, the war crimes charges could attract a sentence close to life imprisonment. The prosecutors’ ultimate objective was, therefore, to prove Kouwenhoven guilty of war crimes.
In March 2006, the three judges of The Hague’s Criminal Division ruled that while it was clear that the awful atrocities had occurred, there was insufficiently clear evidence to convict Kouwenhoven. ‘The evidence does not convince the court that the defendant was actually involved in, nor had the knowledge of the facts charged inasmuch as many different and even contradictory statements were recorded and written documents have not been able to give sufficient evidence to prove that involvement.’60
The judges were, however, convinced both about the nature of the relationship between the Dutchman and the dictator and Kouwenhoven’s arms dealing on Taylor’s behalf. Under oath Kouwenhoven admitted that he was in charge of the day-to-day running of the logging company and that he frequently made payments to Taylor and his entourage on behalf of OTC, above and beyond the $5m in ‘advance taxes’ that the company paid to the NPFL.61 He also admitted to providing a blue and white OTC helicopter for Taylor’s use so that he could move swiftly around the local area. The judges believed that the relationship between Kouwenhoven, Taylor and OTC went beyond the ad hoc. Documents strongly suggested that Charles Taylor was, in fact, a beneficial owner of the company. By this account, Kouwenhoven was Charles Taylor’s business partner.62
The Dutchman admitted that OTC was responsible for the everyday running of the Buchanan port and that the port’s staff complement was made up almost entirely of OTC employees. The testimony of the more than fifty witnesses confirmed that one or more ships belonging to OTC had frequently docked in Buchanan, most notably the Antarctic Mariner. This was confirmed by travel logs and bills of landing. On at least one occasion, if not more often, the ships were carrying massive crates of weapons, mostly AK-47s and RPGs. Once unloaded, they were transported past Charles Taylor’s ‘White Flower’ residence for inspection. Some were retained for use by OTC security guards, many of whom testified about the shipments. One guard recalled that little was done to hide the contents of the crates once shipped: ‘Every time the Antarctic Mariner arrived, there were weapons on board. The weapons were packed in crates and containers. I have seen that it was written down on the crates that they carried weapons. For instance “AK47 rifle” was written on the crate.’63
Given that Kouwenhoven was the single and most important point of contact between Charles Taylor and OTC, the judges were satisfied that he was directly involved in the arms deals. ‘There is no doubt that the defendant has continuously and from the start, played an important role in this structural weapons importation. Therefore, the court considers proven that the defendant, together with one or more persons, has supplied weapons to Charles Taylor [and] Liberia.’64 On 7 June 2006, Kouwenhoven was sentenced to eight years in prison for his illegal arms dealing.
Immediately after the judgment, both the Dutch Prosecutor’s Office and Kouwenhoven launched appeals. The prosecutor felt that the charges of war crimes had been unfairly dismissed, while Kouwenhoven’s lawyers raised a number of objections to the findings on the arms-dealing charges. Central to Kouwenhoven’s appeal was the claim that the evidence presented against him was unreliable. The majority of this evidence was, of necessity, in the form of witness statements, which the defence team complained were inconsistent on key facts. During the appeal proceedings, Kouwenhoven’s lawyers painstakingly walked the court through these inaccuracies, aided by the use of PowerPoint slides.
To the shock of everyone who had followed Kouwenhoven’s career, the Dutch Appeal Court agreed with his defence in its judgment delivered in March 2008. After lambasting the conduct of the investigation and especially the use of confidential informants, the judge fairly eviscerated the witness testimonies, describing them as self-contradictory. In some instances, the judge claimed, witnesses had made statements that simply could not be true. The ‘most striking’ example of this provided by the court was the naming of the Antarctic Mariner:
Witnesses stated emphatically that they saw the Antarctic Mariner deliver its first shipment of arms in early October or December 1999 (and that the defendant was seen on board the vessel around this time in the port of Buchanan), whereas it was established that the vessel did not start to sail under this name until May 2000, after it had been acquired by OTC, and therefore can never have been in the port of Buchanan in 1999 bearing this name; and the Court of Appeal has no indications that the vessel at the time was present in that port under its previous name of ‘Sinela.’65
This example of inconsistencies identified by the Appeal Court, as well as others, was less than convincing in proving that entire swathes of witness testimonies were unreliable. Larissa van den Herik, Associate Professor of Law at Leiden University, commented on this example:
It may well be that the ship that would later be called Antarctic Mariner was in the harbour of Buchanan in December 1999 and that the witnesses who saw that ship at the time now testify about it calling the ship by its current name, even though they are speaking about the ship in an era that it was bearing a different name. If true, the witness statements do, after all, refer to the same ship.66
She believes that the Appeal Court failed to understand the context of Liberia in wartime, and the problematic nature of presenting evidence from a foreign war-torn country in the comfortable courtrooms of the developed world. She cites another example of evidence that the court labelled problematic. In describing how weapons were unloaded from the Antarctic Mariner one witness statement claimed that much of the arms cargo was unloaded by hand and with the use of step ladders. This, the court believed, was an implausible assumption. ‘True, it is quite unlikely that such cases would be offloaded by manpower alone in a developed country like The Netherlands,’ van den Herik concedes. ‘But is it really that incredible when account is taken of the status of Liberia as belonging to the category of Least Developed Countries?’67
The consequence of the judgment was that Kouwenhoven, two years after being found guilty, was now a free man, cleared of all charges against him. His loud protestations of innocence had to be taken at face value, despite this jarring with the reality that he had, in his own testimony, admitted to materially supporting one of the world’s fiercest warlords in return for monetary gain. The Dutch Campaign Against the Arms Trade lamented that:
Dutch arms dealers guilty of brokering outside the Netherlands have little to fear from the Dutch authorities.… International initiatives and requests from parliament for more adequate legislation have been delayed by this government. Even with adequate legislation it will continue to be very difficult to bring arms brokers to justice, because, for example, cooperation is needed from countries to which the arms are sold in the first place.68
His freedom, however, might be short-lived. After the 2008 judgment the Public Prosecutor appealed once more. At the heart of this appeal was the Appeal Court judge’s refusal to admit damning testimony that had been heard after the 2006 judgment by the Special Court for Sierra Leone. In 2010, the Supreme Court found the judge’s decision unreasonable, arguing that the evidence should have been admitted for consideration by the Appeal Court. The Appeal Court decision was overturned and a retrial was ordered for Gus Kouwenhoven.69
* * *
If the Bout and Kouwenhoven cases typify two of the major problems in prosecuting arms dealers – a lack of political will and the difficulty of gathering evidence from war-torn and chaotic territories – the case of Leonid Minin exemplifies the pre-eminent obstacle to justice: jurisdiction.
Minin was arrested in flagrante on 4 August 2000. The police tackled his indiscretions one at a time. The first charge to be prosecuted was for the illegal possession of drugs. Considering the large quantity of cocaine in his possession and his previous arrests on narcotics charges, Minin was swiftly found guilty and sentenced to two years in prison.70 Walter Mapelli, the Italian prosecutor in charge of the case, then turned his attention to the accusations of arms dealing. In June 2001, Mapelli successfully argued for Minin to be retained on pre-trial detention on the basis of documents found in his possession, photographs of his plane in action in Liberia and the testimony of a number of interviewees. This pre-trial evidence alone seemed damning. One photograph, for instance, showed a series of bags next to Minin’s plane in Liberia. The weapons, which were clearly visible in the bags, were identical to weapons detailed in brochures and a catalogue that was in Minin’s possession.71 The prosecutor also produced the end-user certificate used by Minin to transport weapons to Liberia, which was signed by the Ivorian President, Robert Guéï.72 When Italian investigators contacted the Ivorian authorities, it was confirmed that the certificate had never been issued and was fraudulent, clear evidence that Minin had been trafficking arms illegally.73 Finally, Mapelli presented a detailed summary of the various financial transactions that Minin had arranged to facilitate the deals.
The determined and thorough prosecutor was understandably confident of a successful prosecution when one adds to this Minin’s confession, the evidence of his one-time partner, Fernando Robleda, and one of Minin’s pilots, and the exhaustive work of the UN investigator Johan Pelemann.74 His case did not suffer the same problems as Kouwenhoven’s. In Minin’s case, the public prosecutor had ‘solid’ evidence in the form of extensive documentation and money flows and didn’t need to rely on sometimes tricky witness statements.
It also seemed that Minin was bent on undermining his own defence. By 2002, he had fired four different lawyers, one of whom, Pierre Traini, described Minin as ‘a difficult, difficult client. I represented him for three months only and I am very tired.’75 Minin’s own testimony under questioning was frequently contradictory and contained bold assertions that often did not tally with the documents that had been seized from him. Walter Mapelli described Minin during questioning: ‘He was often changing in his mood and behaviour, passing from a collaborative and talkative approach to aggressive and pressing speeches. I felt Minin’s words were not fully faithful [sic].’76 Given this erratic behaviour and his criminal past, Minin was unlikely to have made a credible witness. His future looked bleak.
But in September 2002, Minin appealed against his pre-trial detention. The judges found in his favour, not pronouncing on Minin’s guilt or innocence but instead ruling that the court had no jurisdiction over the crimes.77 Minin was freed, two years after his initial arrest. Mapelli attempted to have the judgment reversed and appealed the matter all the way to Italy’s highest court. In 2004, the Supreme Court of Cassation confirmed that jurisdictional concerns prevented Minin’s prosecution. The crime, they pointed out, had taken place in an overseas country by a foreign national. In addition, there was no evidence that the arms had ever entered or flown over Italian territory from their source in the Ukraine, or that Minin had conducted any important brokering meetings in Italy.78 The only charge on which he could be found guilty was possession of unregistered diamonds, for which he was fined €40,000.79
The decision was galling but not surprising. Minin had been a resident of Italy for many years and was married to an Italian woman. Some of the proceeds of his crimes were certainly utilized in Italy. But I was told that in the days leading up to his successful appeal Minin’s legal team had been bolstered by the arrival of a posse of high-powered lawyers from one of Italy’s leading arms companies.80
As Italy is a UN member state, one would imagine that an Italian court would look unfavourably on a local resident breaking UN arms embargoes. But Minin’s case highlights the weakness of international enforcement efforts. UN sanctions and weapons embargoes are pointless if national legislative frameworks do not allow some sort of universal jurisdiction. For the most part, the law and its enforcers have to police multinational crimes with legal instruments that have failed to keep pace with modernity. ‘Jurisdiction is one step behind criminality today, because criminality is operating globally and continues to do so all the more,’ Mapelli complained during the proceedings. ‘Whereas each state is very jealous of its own sovereignty and its own prerogatives within its borders, the consequence of this is that each state only sees one little segment of the whole business.’81
Mapelli based his case on Article 10 of the Italian Criminal Code, which states that a non-citizen who is physically in Italy may be charged for a crime undertaken in another country which is punishable by at least three years in jail, at the request of the Minister of Justice. The initial judge was of the same opinion but the Supreme Court cancelled the arrest warrant, claiming that illicit arms trading is an exception to the rule of Article 10. Mapelli clearly disagrees with this interpretation and is worried that there has never been a conviction in Italy for a serious case of arms trafficking.82 I was told by a source close to the investigation that the Ministry of Justice was not keen to grant permission for the trial to take place and that informal political pressure was applied to the courts.83 But I was unable to verify this with a second source.
* * *
When considering the cases described in this section, and their unacceptable legal outcomes, one cannot but conclude that the tragic reality is that arms companies, large and small, and arms dealers and agents, get away with corruption and bribery on a massive scale, complicity in crimes against humanity, and even murder. They operate in a shadow world, taking advantage of gaps in the international legal system and hiding behind the protective cover of powerful politicians and intelligence agencies, as they continue to grease the wheels of dictatorships and other unaccountable governments, allowing the intensification of conflicts and mass human rights violations. As a consequence our world is a more dangerous place for the majority of us to live but a more lucrative place for the small group of criminals and their protectors who have become fabulously wealthy through the immiseration of others.