Rechtbank Den Haag, 01-03-2013, ECLI:NL:RBDHA:2013:8710, 09/748004-09/translation
Rechtbank Den Haag, 01-03-2013, ECLI:NL:RBDHA:2013:8710, 09/748004-09/translation
Gegevens
- Instantie
- Rechtbank Den Haag
- Datum uitspraak
- 1 maart 2013
- Datum publicatie
- 18 juli 2013
- ECLI
- ECLI:NL:RBDHA:2013:8710
- Zaaknummer
- 09/748004-09/translation
Inhoudsindicatie
Unofficial translation of ECLI:NL:RBDHA:2013:BZ4292. Only the Dutch text of the full verdict is authentic.
The defendant is tried for abetting genocide, attempted genocide, murder, conspiracy to genocide, incitement to genocide and war crimes, commited in Gikondo in Kigali, Rwanda. The court sentences the defendant to the maximum term of imprisonment of 6 years and 8 months.
Uitspraak
DISTRICT COURT IN THE HAGUE
Criminal Division
Three-judge criminal section
Case number 09/748004-09
Date of judgement: 1 March 2013
Judgement in a contended action
Based on the charges and following an examination in court, the District Court in The Hague pronounced the following judgement1 in the case of the Public Prosecutor against the defendant:
Yvonne N. [Yvonne Basebya],
Born in [place of birth] (Rwanda) on [date of birth] 1947,
address: [address].
Currently in detention in the Penitentiary Institution [name PI]
The court hearings were held on 22, 23, 25, 26, 29 and 30 October 2012, 1, 2, 12, 15, 16, 26, 27 and 29 November 2012, 6, 7, 11, 14 and 20 December 2012 and 1 March 2013.
The District Court has taken note of the actions instituted by the Public Prosecutors Messrs. H.C.M. van Bruggen, W.N. Ferdinandusse and T. Berger as well as the evidence put forward by the defendant’s Counsels Messrs. V.L. Koppe, T.M.D. Buruma and G.K. Sluiter, lawyers in Amsterdam, and by the defendant.
1 THE CHARGES
1. The defendant is charged with involvement in serious offences allegedly committed in Rwanda during the period from October 1990 up to and including July 1994. These offences have been described in the amended indictment, which forms an integral part of this judgement as enclosure I.
2. Briefly stated, the charges are as follows:
1. Genocide in the immediate living environment
In the period from 22 February 1994 up to and including 18 July 1994, the defendant was involved in genocide, in her living environment (in the Gikondo district, municipality Kicukiro, prefecture Kigali, in Rwanda). Together with others, she killed/seriously caused physical and/or mental harm to members of the Tutsi population group. She did this with the aim to wholly or partly exterminate this population group. In the process, the co-perpetrators of the defendant used machetes, other (traditional) striking or stabbing weapons and fire weapons.
In particular the defendant is reproached for her participation in the genocide at three moments in time:
- -
-
The murder of [victim B], [victim D] and other Tutsis and the rape of [victim E] on or around 22 February 1994;
- -
-
The massacre of Tutsis in the PallottiChurch in Gikondo on or around 9 April 1994;
- -
-
The murder of [victim A] on or around 11 April 1994.
Principally, the defendant is accused of having committed (as intellectual instigator) the genocide jointly and in conjunction with others.
Alternatively, she is charged with incitement of genocide in the period from 1 October 1990 up to and including 15 April 1994 and more alternatively being an accessory to this genocide. The defendant has incited porters at the market and other poor young men, some of them named personally in the indictment and all together referred to as Interahamwe/ Impuzamugambi, to commit genocide or aided them to commit genocide. Using her leading position within the CDR party, she ventilated her extremist anti-Tutsi sentiments during meetings which included these young men. She would sing extremist anti-Tutsi songs such as the infamous “Tubatsembatsembe” and told the men that they should defend themselves against the enemy, being the Tutsi population group. She told them that all Tutsis were followers of the RPF, that they were prepared to support the RPF in their military advance and consequently they were the enemy. For this reason the Tutsis had to be killed. In this way, the defendant solicited the commission of violence against Tutsis. She awarded participants in the meetings with money, beer and/or food and provided them with uniforms, military training and/or weapons. She also disclosed information about the hiding places of the Tutsis so they could be attacked; she kept lists with names of Tutsis who had been killed or still had to be killed and she gave orders to the young men to kill every Tutsi in the vicinity or to rape the Tutsi women.
2. Attempted genocide in the living environment
In the period from 22 February 1994 up to and including 18 July 1994, the defendant was involved in attempted genocide on Tutsis in her immediate living environment. The attempts as charged include the following:
- -
-
Attacks on Tutsis on or around 22 February 1994. At that time, an armed group went searching for the following Tutsis (among others): [witness 2] (the wife of [witness 1]), [the mother of witness 2], [witness 8] and [witness 6] (the wife of [victim F) with the intent to kill them, to inflict serious physical and/or mental harm or to rape them. This crime was not completed because the group was unable to find these victims (due to fences or resistance).
- -
-
A search for Tutsis with the same intent in the period from 6 April until 18 July 1994. During this period, an armed group went to the dwelling of (among others) [witness 1], searching for Tutsis in hiding which included [victim F, husband of witness 6], [witness 5], [witness 7], [person M], [person N] and [person O]. This time too, it was only an attempt.
Principally, the defendant is charged with having co-committed (as intellectual instigator) genocide, alternatively, she is charged with incitement of genocide and/or being an accessory. The incitement/complicity has been charged in the same way as in count 1. The perpetrators are the same persons as well.
Most alternatively, under count 2 the defendant is charged with the attempted incitement of (attempted) genocide. Here again, this involves the same perpetrators and the same manner of incitement.
3. The murder of [victim C]
The defendant is principally charged with the co-commission of the murder of [victim C], the wife of [witness 5], on 22 February 1994. The defendant is the intellectual perpetrator of this murder, which was committed by one or more of the young men referred to in counts 1 and 2. They killed [victim C] by use of strike and/or stab weapons. They assumed erroneously that [victim C] was a Tutsi.
This offence has been charged alternatively as incitement and more alternatively as complicity as an accessory, in the same manner as in counts 1 and 2.
4. Conspiracy to commit genocide
The defendant is charged with the offence that she, during the period from 1 October 1990 up to and including 14 April 1994, in the immediate vicinity of her living environment, with one or more persons, conspired to commit genocide on the Tutsi population group. With these other persons she participated in meetings during which the participants were incited to kill Tutsis and to commit violence against Tutsis. There, she sang extremist anti-Tutsi songs about the extermination of Tutsis (including the Tubatsembatsembe song). She also kept a list with names of murdered Tutsis, Tutsis who had to be searched for and killed, as well as their hiding places, which information she shared with these other persons. With the latter, she also discussed the progress of the Tutsi killings. In this manner, the defendant came to the agreement to destroy the Tutsi population as such.
5. Incitement to commit genocide
The defendant is charged with the offence that, during the period from 1 October 1990 up to and including 14 April 1994, in her immediate living environment, she publicly and verbally incited to commit genocide.
She did this by leading a group of people including poor youngsters and market porters and/or women in the singing of extremist anti-Tutsi songs, including songs about the extermination of the Tutsi population group and about the use of violence against this population group (including the Tubatsembatsembe song).
She also shared her anti-Tutsi sentiments with them and ventilated that all Tutsis had to be exterminated. She did this in the immediate vicinity of her dwelling and she could be seen and heard from the public road.
6. War crimes (unlawful assault on human dignity and threat)
The defendant is charged with committing war crimes, during the period from 1 October 1990 up to and including 14 April 1994, in the immediate vicinity of her living environment, together and in conjunction with others. These war crimes allegedly took place in a non-international armed conflict between the armed forces of the State of Rwanda and the Rwandese Patriotic Front (RPF). The victims were persons who did not participate in the hostilities. Some of those have been named in the indictment. The defendant brought these people in situations in which they were seriously publicly humiliated and had to fear for their lives, mental and physical wellbeing and that of their close family members. The defendant and her co-perpetrators did this by way of showing weapons in a threatening way which could be seen and heard by the victims, by ventilating extremist anti-Tutsi sentiments, by calling for violence against Tutsis and/or accomplices of the enemy (ibyitso), by leading the singing of the Tubatsembesembe song and other anti-Tutsi songs and to call for the search and killing of Tutsis and/or the ibyitso.
2 JURISDICTION AND COMPETENCE OF THE COURT
1. Although it was not disputed by the parties, the Court will first investigate whether the Dutch Judge has jurisdiction regarding the offences as they appear in the indictment. After all, the indictment refers to offences committed outside of the Netherlands, against non-Dutch victims by a defendant, who at that time, did not have the Dutch nationality.
2. During the period referred to in the indictment, genocide and conspiracy to genocide were punishable acts pursuant to the articles 1, first and second paragraph of the Genocide Implementation Act (hereafter: Implementation Act). Incitement to genocide was punishable pursuant to article 131 of the Dutch Criminal Code (Sr1) in conjunction with article 1, first paragraph of the Implementation Act. The Dutch legislator had not provided for universal jurisdiction. Pursuant to article 5, first paragraph of the Implementation Act, Dutch criminal law was actually applicable to Dutch citizens who were guilty of genocide, conspiracy to genocide and incitement to genocide. Moreover, article 5, paragraph 2 of the Implementation Act stated that prosecution for these offences could also take place if the defendant had become a Dutch citizen after committing the offence(s). This is the case. On 7 December 2004, the defendant obtained Dutch citizenship.2
3. In this respect, the Court notes that the International Crimes Act (hereafter: WIM2), which entered into force on 1 October 2003, has established jurisdiction with respect to genocide, without granting retroactive effect however. Since the amendment of this Act, entered into force on 1 April 2012, universal jurisdiction has been established with respect to genocide committed after 24 October 1970.
4. Concerning the war crimes imputed to the defendant, article 3 of the Criminal Law in Wartime Act (WOS3), which entered into force on 10 July 1952 and is valid until the implementation of the WIM, stipulated that this act was applicable to ‘any person’ and with respect to the crimes as referred to in article 8 of that Act. The WIM recognises universal jurisdiction regarding these crimes as well.
5. On the basis of article 5 of the Dutch Criminal Code, besides the requirement of Dutch nationality also the requirement of double punishability applies to the murder as charged. In this case as well, prosecution may take place after the defendant has become a Dutch citizen only after having committed the offence. In the Netherlands, murder is punishable pursuant to article 289 of the Dutch Criminal Code. In the Rwandese Criminal Code, as applicable in 1994, murder had been made punishable pursuant to article 312.
6. In accordance with article 15 of the WIM, this Court has exclusive jurisdiction over international crimes as well as the crimes imputed to the defendant by the indictment.
3 THE ADMISSIBILITY OF THE PUBLIC PROSECUTION SERVICE
-
At the time referred to in the indictment, incitement to genocide (count 5) was punishable pursuant to article 131 Sr in conjunction with article 1 of the Implementation Act. In article 131 Sr, the maximum penalty had been established at a term of imprisonment of not more than 5 years. Pursuant to article 70, first paragraph under 3 Sr, the right to institute criminal proceedings regarding crimes with this maximum penalty was barred by prescription after twelve years. On 1 October 2003, the WIM became effective. This act made incitement to genocide punishable pursuant to article 3, second paragraph. The maximum term of imprisonment was established at fifteen years. In article 13, the WIM also determines that incitement to genocide is considered to be a crime to which statutory limitation cannot be applied.
-
Given the above, during the hearing the Court raised the question whether this should not lead to a partial disallowance of the Public Prosecution Service concerning this count, since the right to institute proceedings had possibly become prescribed for the period up to October 1991.
3. The Public Prosecution Service reacted to this by arguing that the rules for prescription in the Dutch Criminal Code are not, and have never been, applicable to incitement to genocide, since article 3 of the Implementation Act states that article 70 Sr is not applicable to crimes as referred to in the articles 1 and 2 of the Implementation Act. Although incitement to genocide has not been included in these articles, the Prosecution requests the Court to interpret article 3 of the Implementation Act in such a way that it will apply to incitement to genocide as well.
4. The Prosecution has primarily argued that incitement is a particular type of provocation and therefore is excluded from prescription in article 3 of the Implementation Act. Incitement and provocation are equally liable to punishment. Therefore, for both crimes the same prescription regime should be applicable.
5. The Court does not follow the Public Prosecution Service in this respect. Although incitement and provocation are related to each other since they both pertain to inducing another person to commit an offence, provocation is an offence committed in participation and incitement is an independent offence. There are more essential differences: contrary to incitement, one can only speak of provocation if the agitator has used the means as referred to in article 47 and if the offence, or the criminal attempt, has actually been committed. Besides, contrary to provocation incitement is only punishable if it takes place in the public environment. Moreover, although both offences are considered liable to punishment, they are not to the same punishment. Therefore, it is the court’s judgement that it is not self-evident that the same prescription regime should apply to both offences.
6. Secondly, the Prosecution has argued that it must have been an obvious omission by the legislator not to include incitement within the reach of article 3 of the Implementation Act. After all, the Genocide Convention does not make any difference between incitement to genocide, the commission of genocide, conspiracy to genocide, attempted genocide and complicity to genocide. Since, based on the Dutch Criminal Code, incitement to genocide was already punishable, the Implementation Act did not arrange for special regulations with respect to his offence. Thus, the legislator did not make a conscious choice to exclude incitement from article 3 of the Implementation Act, but simply did not think of it.
7. Thus, what is asked here by the Prosecution from the Court is more than the correction of an obvious mistake made by the legislator. The Court did not find any reasons to believe that the legislator made a conscious choice to exclude incitement from the reach of article 3 of the Implementation Act either. Actually it looks like it should be considered as an omission that is the result of a law-systematic less fortunate choice to make incitement punishable pursuant to article 131 Sr (in conjunction with article 1, first paragraph of the Implementation Act). However, it is not up to the Court to correct this, but up to the legislator. In the meantime, the legislator has acted accordingly with the implementation of the WIM.
8. Finally, the Prosecution has argued that the State of the Netherlands neglects its conventional-law and moral duties if incitement to genocide should not fall under article 3 of the Implementation Act, since otherwise incitement to genocide as the implementation of a legal order or an administrative order, would be legitimate.
9. This argument neither gives the Court any reasons to read the Implementation Act in a different way than what it says. There is no stipulation in the Genocide Convention that prohibits the prescription of crimes referred to in this Convention. To attain this however, in the 1974 the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes was concluded. In the Netherlands, this Convention became effective on 27 June 2003. Article 1 of this convention reads as follows:
Each ContractingState undertakes to adopt any necessary measures to secure that statutory limitation shall not apply to the prosecution of the following offences, or to the enforcement of the sentences imposed for such offences, in so far as they are punishable under its domestic law:
1. the crimes against humanity specified in the Convention on the Prevention and Punishment of the Crime of Genocide adopted on 9 December 1948 by the General Assembly of the United Nations;
The Court determines that this convention “may not be applicable to all parties” but that it requires the State of the Netherlands to adapt national legislation if necessary. Therefore, from article 93 of the Constitution arises that this stipulation in this Convention does not set aside Dutch criminal law. In the meantime, by introducing the WIM, the Netherlands have met this Convention obligation. It should be noted here that different from the Prosecution’s argument, this Convention demonstrates that neither the Genocide Convention, nor any other convention excluded statutory limitation with respect to these crimes.
1. With its reference to moral obligations, the Prosecution possibly aims at the unwritten rule of international customary law which resists statutory limitation of crimes from the Genocide Convention. The Court also sees strong indications which point at the existence of such a rule.4 However, article 94 of the Constitution provides that the Court shall not be allowed to test the law against international customary law.5
1. Therefore, the Court comes to the following conclusion. Concerning the period in the indictment from 1 October 1990 up to and including 1 October 1991, the right to institute proceedings regarding count 5 had already prescribed on 1 October 2003. The twelve years had gone by and no act of prosecution had been instituted against the defendant. Concerning this part of the indictment, the Court declares the Public Prosecutor inadmissible in the prosecution.
1. Extending the period of statutory limitation as from 1 October 2003 does not lead to the fact that crimes already prescribed may be prosecuted anew, but according to legal precedent it extends the current prescription period of crimes already having been committed. (HR4 29 January 2010, LJN BK1998).
1. In so far as the charges under count 5 had not yet prescribed on 1 October 2003, the right to institute legal proceedings has remained. This is the case for the period as charged from 2 October 1991 up to and including 15 April 1994.
1. It should be noted here that no circumstances have arisen which could bar the admissibility of the Public Prosecution Service.