The double jeopardy rule was the focus of arguments at a virtual sitting of the Western Cape High Court yesterday when the state said if a Dutch arms trafficker is not extradited from SA to the Netherlands where he was previously convicted of war crimes relating to Liberia he could be off the hook in SA.

It said the double jeopardy rule could block him from being tried on the same offences here.

According to the state, if double jeopardy does indeed apply to Guus Kouwenhoven (78), it may also mean that he is immune from any potential trial in Liberia. This, says a Daily Maverick report, could mean that if Kouwenhoven remains in SA, or even if he ends up in Liberia, he may never be held to account for the crimes of which he has been convicted.

But Kouwenhoven’s legal team does not believe double jeopardy necessarily applies to his situation.

The proceedings yesterday link back to February when it was ruled in the Cape Town Magistrate’s Court that he would 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.

So, the Netherlands could not have him extradited because the alleged crimes had occurred in Liberia. Kouwenhoven was satisfied with this and his legal team believed the magistrate had applied the Extradition Act correctly.

However, the Western Cape’s Director of Public Prosecutions pushed ahead with an appeal against the Magistrate’s Court decision and Kouwenhoven’s legal team brought a review of the state’s right to appeal in extradition matters.

During yesterday’s proceedings, notes the DM report, hours were spent discussing the different interpretations of the Extradition Act and a section of the Criminal Procedure Act.

The matter of jurisdiction was also discussed in-depth.

Judge Owen Rogers noted there seemed to be ‘very little authority’ on double jeopardy around the world and that perhaps different states applied different strategies.

He said the law was unclear on whether Kouwenhoven could be tried in SA or Liberia and while practically this could happen, it was not clear if it could be done legally.

Judgment in this matter – the state’s push against the Magistrate’s Court decision, which was linked to the defence’s review of the state’s right to appeal in extradition matters – was reserved.

Full Daily Maverick report