ECLI:NL:RBDHA:2013:8710

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. 1THE 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. 2JURISDICTION 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 (Sr) 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: WIM), 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 (WOS), 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. 3THE 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. (HR 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. 4THE INVESTIGATION Preliminary inquiry 1. In May 2007, the National Office of the Public Prosecutor was advised by the Rwandese Public Prosecution Service and the human rights organisation African Rights that the husband of the defendant, (X) who lived in the Netherlands, appeared on a list of wanted persons in Rwanda.6 This was the cause for the initiation of an investigation under code name Vos into his possible involvement in the Rwandese genocide in 1994. 2. On 10 December 2007, a request was sent to the Rwandese authorities for information about [X, husband of defendant].7 The Rwandese authorities complied with this request.8 They forwarded a number of witness statements rendered before the Rwandese Parquet Général in 2006 about Basebya.9 In these statements, different witnesses called the defendant a leading figure in the political party CDR10 (Coalition pour la Défense de la République). 3. They also forwarded documents from the Rwanda-Tribunal11, including the so-called Cladho-report. This report was drawn up in December 1994 by the Cladho (Collectif des Ligues et Associations de Défense des Droits de L'Homme). The report’s subject is the investigation into the events in Rwanda as from 6 April 1994. Attached to this report was a list of persons who are suspected of participation in the genocide. The list includes the name [X, husband of the defendant] as well as the defendant’s name.12 4. They also forwarded statements from witnesses who had testified in a Danish criminal case against a person accused of genocide. These statements also mentioned that the defendant had played a role in the genocide.13 5. Subsequently, investigators of the National Criminal Investigation Service (NCIS) went to Rwanda where they heard a number of witnesses and investigated the so-called gacaca-courts.14 This investigation furnished, among other matters, a gacaca-file about the defendant.15 6. Based on this information the Public Prosecution Service extended the investigation to include the defendant. 16 7. Subsequently, the NCIS heard more witnesses, inside and outside of Rwanda. Special investigation powers were implemented, which included the wire tapping of telecommunications, internet data and confidential communication inside the dwelling of the defendant.17 8. On 12 May 2010, an article was published in the Rwandese newspaper "The New Times" in which they referred to the investigation by a Dutch team into [X, husband of defendant] and his wife.18 This caused the investigation to gain momentum. Once more, special investigative actions were implemented and on 11 June 2010, a search was conducted in the dwelling of the defendant and her husband. During this search, a computer, data carriers, audio and video equipment and documents were seized.19 9. On 21 June 2010, the defendant was arrested in her home. That very same day, she was taken into police custody. Subsequently, on 24 June 2010, the Examining Judge remanded her in custody and she was transferred to a detention centre. 1. After this, the NCIS continued the investigation, parallel to the investigation conducted by the Examining Judge described below. Among other matters, this investigation consisted of hearing witnesses and analysing seized data and documents which had become available in other ways within the scope of the investigation. Investigation by the Examining Judge 1. Upon an order issued by the Public Prosecutor, on 2 July 2010, the Examining Judge opened a preliminary inquiry.20 On 5 August 2010, he held an agenda hearing with the Public Prosecutor and the Counsel. This hearing was about organisational issues, the requests to conduct investigations, local inspections and photography in Gikondo, parallel investigation and planning.21 1. On 3 and 4 September 2010, the Examining Judge visited Kigali with the Public Prosecutor and the Counsel of the defendant. This first visit of the Dutch delegation based on the request for legal assistance in criminal matters (rogatory commission) concentrated on a local inspection of the Gikondo district and taking photographs of locations selected by the Examining Judge and the parties in that district.22 1. Pursuant to article 258, second paragraph of the Code of Criminal Procedure, the preliminary investigation was concluded with the indictment of the defendant.23 1. The first pro forma hearing took place on 27 September 2010. On that occasion, the Court handed over the documentation to the Examining Judge for the purpose of further investigation, i.e. the taking of testimony of a number of witnesses, the appointment of an expert, hearing the defendant and to carry out all other actions deemed to be “in the interest of the investigation”, according to the Examining Judge. Each time during the succeeding pro forma hearings, (the progress

1. of)the investigation carried out by the Examining Judge was discussed. The Court took certain decisions about the investigation during these hearings and always made the documentation available to the Examining Judge with the same ‘open referral’. 1. For use during each pro forma hearing, the Examining Judge drew up an official court record in which all investigative activities in the interim period were included. There are 11 official court records in total. Of all rogatory commissions he made reports in official reports of findings of all relevant findings and observations during these trips. In the file there are 30 official reports of findings of the rogatory commissions. The Examining Judge also reported about other investigative activities in the official reports of findings. 1. During the course of his investigation, the Examining Judge frequently consulted with the Public Prosecutor and the Defence. 1. The Examining Judge heard the defendant on 2, 3 and 7 March 2011 and on 13 October 2011.24 1. On 19 May 2011, the Examining Judge, with the approval of the parties, appointed Prof Dr André Guichaoua, professor at the University of Paris I Panthéon-Sorbonne (France) as expert, and requested him to report about the political and historical context of the events in Rwanda during the period 1990-1994.25 After publication of the report, questions in writing were submitted to the expert by the Court, the Examining Judge, the Defence and the Public Prosecution Service. The expert answered those questions in writing as well.26 On Thursday 11 October 2012 and Friday 12 October 2012, the expert was interviewed by the Examining Judge; during this interview, questions were put to the expert by the Defence exclusively. 1. Furthermore, at the request of the Defence and with the approval of the Prosecution, the Examining Judge appointed Prof Dr Jean de Dieu Karangwa, connected to the Institut National des Langues et Civilisations Orientales (INALCO) in Paris, as an expert. Following a letter from 2006 written by witness [witness 13], this expert wrote a report about the use of the words “We” and “Us” in the Kinyarwanda language.27 20. As laid down in article 177 of the Code of Criminal Procedure, several times the Examining Judge ordered detectives of the NCIS to carry out certain investigations.28 21. The pièce de résistance of the Examining Judge’s Investigation was the hearing of witnesses. From September 2010 up to and including November 2012, he took evidence from 70 witnesses, many of those more than once and during many, long days. Most witnesses were heard in foreign countries: in Rwanda, Belgium, France, Switzerland, Poland, Canada, the United States of America, South Africa, Malawi and Kenya.29 The witness examinations by the Examining Judge 22. The Examining Judge preferred to take evidence from each witness in his or her mother tongue.30 Therefore, practically all witnesses were heard in their mother tongue, with the assistance of an interpreter, mostly in Kinyarwanda. 23. In the official records of witness interview, the Examining Judge literally reproduced all remarks and questions put to the witness by him, questions by the Public Prosecutor and the Defence, and all answers given by the witnesses. By using this reporting form, he was able to realise an almost 100% true and literal representation of the witness interviews.31 32 24. At the start of each interview, the Examining Judge gave the following explanation: “I am an Examining Judge of the District Court in The Hague in the Netherlands. You have come here in order to be heard as a witness. I would like to give a further explanation to you about this interview and what is going to happen, but before we start I would like to introduce the other persons present here. First, next to me is my clerk. Then there is the Public Prosecutor, who in the Netherlands instituted proceedings against the defendant, in whose case you will be interviewed today. Also present is the Defence Counsel for the defendant, the lady over there. This gentleman is the interpreter, but of course you had already understood this. In the Netherlands, there is a person who has to stand trial concerning crimes that were committed prior to and during the genocide in 1994 inKigali, Rwanda. This person was arrested by the police in the Netherlands and is presently on remand in custody awaiting trial. This person is prosecuted by the Public Prosecutor because the latter suspects her of being involved in the genocide in Rwanda in 1994. But this person denies the charges and the Counsel defends this person. In the end, in this criminal case the District Court in The Hague will have to decide whether this person is guilty or not. To prepare for these proceedings, an inquiry has to be carried out, especially witnesses have to be heard, and you are one of those witnesses. Under Dutch law, witnesses in a criminal case are usually heard by the Examining Judge and not by the judge during the hearing of the case in court. I am not involved in the trial of the defendant; I only conduct the inquiry. I am also allowed to hear witnesses in foreign countries, if the authorities of those countries grant their approval, such as here in Rwanda. When interviewing witnesses, I lead the interview in my capacity as Examining Judge. I am going to ask you some questions, but the Public Prosecutor and also the Defence Counsel will get the opportunity to ask you questions. Everything that is being said, and this includes your statements, will be written down literally in an official record of witness interview by my clerk. Then at the end of the interview all that you stated will be read to you, i.e. all questions and all answers. You will be able to correct any mistakes in the answers. After the statement has been read to you and if you agree to its contents, I will ask you to sign the statement. I will also sign the official record and my clerk and the interpreter will too. Then I will take this official record with me and I will include it in the criminal file in the Netherlands. The judges in the Netherlands will read your testimony and for them it means that they can trust that everything that is on paper is a true representation of what has been said during the interview. This interview is taking place with the aid of an interpreter. I always ask a witness to render his or her statement in his or her mother tongue, the language he/she learned as a child from the parents. The language used in the official record is Dutch, since that is the language used by the law courts in the Netherlands. I also take the oath from the interpreter, which I will do right now. If you do not understand the interpreter or you do not understand my question, please say so to me, and I will put the question to you once more. I have explained to you that you are a witness. As a witness, you must speak the truth. This applies to the legal system in the Netherlands, but to Rwanda as well. The truth are all the things that really happened. Everything you state, must have really taken place. I ask you to give evidence about what you have experienced personally: things you have seen for yourself, felt for yourself and heard for yourself. It may be the case that you know certain things because people have told you later. Those things may be important, but please tell me in such a case that you heard them from other people and from whom. Do you understand the difference between things you have experienced yourself and things other people have told you? I will ask you to state about matters that happened more than 17 years ago. You will be asked about what you still remember and then you will also be asked about certain details: dates, times, places, names, etc. Maybe you still remember those things, but maybe you have forgotten. I would like to ask you to tell me honestly when you cannot remember certain things. You can say to me: "I don’t know" or "I can’t remember this". That is no problem at all. But I do not want you to state certain things to me that you actually do not remember at all. Did you understand my explanation and do you wish to say something about it or ask me something?” 25. Subsequently, the Judge placed each witness under oath. During one of the interviews a discussion arose about the meaning of the oath, since for lack of jurisdiction of the Dutch judicial authorities, it would not be possible to prosecute a witness for perjury. Therefore, the Examining Judge took the stand that the oath primarily had a symbolic and not a legal value and if the situation gave cause, he would urge the witness to speak the truth and he would refer to the oath.33 26. The Examining Judge interviewed the witnesses according to a fixed pattern. After the above mentioned introduction, he questioned the witness about him/her self and subsequently about the events in Rwanda. After that and in so far as the witness was able to testify about it, questions were put to the witness about the period between 1990 and 1994 in general, then about the events on 22 February 1994 and then about the period after 6 April 1994. 27. In case of taking evidence from a ‘victim-witness’ in Rwanda there was always the possibility of assistance or support from a psychologist/psychiatrist who would be of Rwandese origin. In case his support was called for, he would have a conversation with the witness prior to and after the interview. The Examining Judge would also speak with the psychologist/psychiatrist after the latter had spoken with the witness. This way, prior to the interview the Examining Judge would be informed about the psychological condition of the witness. As the occasions arose, after the interview the psychologist/ psychiatrist could refer the witnesses to local support agencies. The psychologist/ psychiatrist was paid by the Examining Judge.34 28. In the case of two witnesses35, the intended follow-up examination was not held because of the possible consequences thereof for the physical or mental condition of the witnesses. The Examining Judge had so decided after having talked to these witnesses in the absence of the parties and after having sought the advice of a psychiatrist/ psychologist.36 29. To each of the non-detained witnesses, the Examining Judge offered an expense allowance for each day the witness was not at home because of the interview. In Rwanda this allowance usually amounted to 5.000 Rwandese Francs (Rwf) per day, which equals approximately € 7,00. 37 In some cases a higher expense allowance was awarded for loss of income. In those cases the amount was Rwf. 15.000 per day, which amount is similar to the daily expense allowance paid by the United Nations to their local staff.38 Each time, the Examining Judge explained that the allowance did not originate from the Rwandese authorities, but from him. According to the Examining Judge, some witnesses felt not at ease about his offer and a number of witnesses refused the expense allowance.39 30. During the witness examinations, both the Public Prosecutor and the Counsel regularly raised objections with regard to each other’s questions. This concerned the type of questions as well as the way in which they were put to the witness. Every time, the Examining Judge made a note of the objection in his official report of findings. During the arguments about these objections, he always took the stand that he wanted to leave the parties as free as possible and that he would only intervene when he had the impression that the questions were too leading or misleading.40 He also advised the Defence on several occasions that the time reserved for the interview was limited. 31. During one of the interviews, the Defence objected to a question from the Public Prosecutor to a witness about the latter’s contact with the Defence prior to the interview. The Examining Judge decided that the question of the Public Prosecutor was allowed with the limitation that the question could only relate to the period after which the witness had been allowed by the Court.41 At the next occasion he added to this that he could not order the parties to do or not to do certain things, but that their conduct was limited by the provisions as laid down by the law and by jurisprudence with respect to the taking of evidence from witnesses and that he maintained the principle that the parties should not influence the witness prior to or after the interview or to coach him/her.42 32. During the pro forma hearing of 17 January 2012, the Defence requested the Court to instruct the Examining Judge to give an indication concerning the space allowed to the Defence to put questions to the witness. The Court believed, for fundamental and practical reasons, that it should not give general instructions to the Examining Judge concerning the way in which he should lead the witness examinations, even disregarding the fact that the Defence had not concretely indicated how such an instruction should be formulated. 33. In his closing speech, the Public Prosecutor made a remark about the sometimes unacceptably long duration of some of the witness interviews. He also thought that some of the witnesses were questioned too long about peripheral matters and that they had questions put to them which actually should have been put to an expert. In a number of cases, the intellectual capacity of the witnesses was overestimated. 34. The Court endorses the fact that whatever the case, the interviews were very hard on the witnesses. They were asked to return to the horrible events that had taken place about twenty years ago. The Court also shares the opinion that the interviews were very long and intensive for the witnesses. The Court recognises that this carries the risk of overburdening the witness. On the other hand, it is very important to the Defence to test the reliability of (the statements
2. of)witnesses in a case in which the evidence almost exclusively comes from their testimonies. Given the nature of the charges, it was inevitable that the questions which were put to the witnesses did not primarily refer to the charges against the defendant, but more to their (political) context. Furthermore, in one case the Examining Judge decided not to continue the interview of a certain witness because of the possible adverse effects on the mental and physical health of the witness. Finally, as a result of the accurate documentation of the interviews, the Court was able to read whether an interview had been painful or difficult for the witness, which state of mind could have an effect on the assessment of the evidence. 35. During one of the interviews in Rwanda, after having had telephone contact with the defendant, the Defence submitted a request to challenge the Examining Judge. The Court dismissed this challenge.43 Two of the other interviews in Rwanda were interrupted at the Counsel’s request, because he wanted to deliberate on the option whether or not to submit a request for a challenge.44 Pro forma hearings 36. Pro forma hearings took place on 27 September 2010, 14 December 2010, 9 March 2011, 1 June 2011, 24 August 2011, 17 November 2011, 17 January 2012, 2 March 2012, 30 March 2012, 18 June 2012, 23 July 2012 and 13 September 2012. 37. During the session of 27 September 2010, the defendant was assisted by an interpreter in Kinyarwanda. At the request of the Defence, during the succeeding sessions the services of French interpreters were hired. As from the hearing on 24 August 2011, simultaneous translations were carried out from an interpreting booth. 38. At the hearing of 23 July 2012, the Defence submitted the request to hire the services of an interpreter both in the French and Kinyarwanda language during the trial, because this would allow the defendant to better answer the questions put to him by the Court. At the hearing of 13 September 2012, the Public Prosecution Service dismissed the request and during the same session, the Court rendered the following motivation for its decision: With respect to the request concerning the interpreters, the Court puts first that in relation to treaties, law and legislation, a defendant is not entitled to be heard in his/her own language. Of course, it should be done in a language which he/she understands well. Up to this moment, the Defence has explicitly indicated not to use the services of an interpreter in the Kinyarwanda language, but a French interpreter, arguing that the defendant is most fluent in that language. The Court establishes that the Counsel for the Defence has omitted to indicate the grounds for continuing new insights which would justify a deviation from this line. Nevertheless, the Court will satisfy defendant’s request to be allowed to answer the questions put to her during the hearing in her mother tongue. This means that the questions will be put to the defendant through the intermediary of a French interpreter and that the defendant will be given the opportunity to answer in Kinyarwanda. However, should this situation encounter opposition, in view of the above mentioned considerations there should be no reason not to continue the hearing. In that case the Court will only use the services of the French interpreter. 39. During the hearing of 14 December 2010, the Defence asked for an investigation budget of € 15,000. During the hearing of 9 March 2011, the Court showed the Defence articles 591 and 591a of the Code of Criminal Procedure and article 16 of the Costs in Criminal Cases Act. On 24 May 2011, the clerk of the Court awarded an advance payment of €15,000 for the purpose of investigation expenses. 40. During the hearing of 17 January 2012, the Court made decisions concerning requests from the Defence for the examination of witnesses by the Examining Judge. Some requests were dismissed. On 28 February 2012 – just prior to the next hearing – the Court received a letter from the Defence saying that following the dismissals on 17 January 2012, the Defence had lost faith in the Court. According to the Defence Counsel, the Court had already made up its mind about the defendant’s guilt, had more or less declared the charges proved and had already established the penalty, i.e. imprisonment for life. However, according to the letter, the Defence would not submit a request to challenge the Court because this would never be successful. The letter also included the request to hear 41 witnesses. 41. During the hearing of 2 March 2010, the Court merely stated that it would do what it always does: carefully investigate, in a fair trial, whether the charges brought against a defendant can be proved legally and convincingly. 42. During the hearing of 30 March 2012, after having given the Prosecution the opportunity to react, the Court rendered a decision concerning the requests submitted in writing on 28 February 2012. Prior to its motivation, the Court made the following general remarks with respect to each request separately: As has been demonstrated by his letter of 28 February 2012, the Counsel’s requests are dictated by his distrust of the Court. The Court puts first that distrust harboured against it is not a ground recognised by any law or legislation concerning a decision to be taken by the Court in this criminal case. In his fax of 29 March 2012, the Counsel writes that a possible repair of his trust in the Court (also) depends on the decisions the Court is going to take on his requests. It goes without saying that this will never be the Court’s guideline. During the hearing of 17 November 2011, the Counsel announced that he would be requesting the examination of three witnesses. In the meantime, his misplaced distrust had lead him to request the examinations of a large number of witnesses. In his letter of 28 February 2012, the Counsel writes that he is aware of the fact that should his requests be honoured, this would have as a consequence that the actual trial could not commence earlier than September or October of that year. This judgement shows a total lack of sense of reality. As from 5 September 2010 up to the present, the Examining Judge has interviewed 53 witnesses; of these examinations 49 have been concluded. Honouring all Counsel’s requests would mean that it would not have been possible to start the actual trial before the autumn of 2013. 43. During the hearing of 17 January 2012, the Defence requested the examination of six witnesses in court, i.e. four witnesses for the Defence and two witnesses for the prosecution. In the above mentioned letter of 28 February 2012, the Defence requested to hear fifteen witnesses in court. During the hearing of 23 July 2012, the Defence amended her request once more. That request was to hear ten witnesses in court, five for the prosecution and five for the Defence. The Prosecution decided to dismiss these requests and motivated her decision as follows. During that hearing, the Court put first that Dutch Law of Criminal Procedure is applicable and that the request should be judged according to Dutch standards and the standards of the European Court of Human Rights. The Court observed that the examinations by the Examining Judge had been very comprehensive, that he had been very careful in his reports about the examinations and that practically no questions had been barred from being asked. On this basis the Court decided that it was of no interest to the Defence to hear the witnesses in court. There has been no proof of any official necessity to actually hear witnesses in court. 44. On many occasions the Defence requested that the pre-trial detention of the defendant be lifted or suspended and every time, the Prosecution resisted. On each occasion, the Court confirmed that there were serious objections to that request and solid grounds for the (continuation
3. of)the pre-trial detention. On 18 June 2012 – two years after the arrest of the defendant – the Court suspended defendant’s pre-trial detention for reasons of her personal circumstances and in particular because of the long duration of the pre-trial detention. The suspension was granted until 22 October 2012, which at the time was the estimated start of the actual trial. The usual conditions had been attached to the suspension, including the condition that the defendant would hand over her travel documents and that she would report to the local police every week. The actual trial 45. The actual trial took place 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. On 1 March 2013, the preliminary inquiry was formally concluded. 46. At the start of the trial, the Defence argued that the Prosecution should be barred because it had omitted to timely add a judgement of the Court of First Instance in Kigali on 8 August 2003 to the criminal file. By this omission, the Defence argued, the Prosecution had violated the principles of due process and the interests of the defendant irreparably. 47. The Court declared this argument to be unfounded. It came to the conclusion that in this case the Prosecution had not acted in violation of the fundamental principles of due process and that the interests of the defendant had not been violated irreparably. 48. On 23 October 2012, the Defence advised the Court of various investigative requests. This involved (partly) repeated requests at the address of the Examining Judge to hear the witness [witness 14], and to hear five witnesses –two for the prosecution and three for the defence- and the expert in Court. On 25 October 2012, the Court decided on this request. 49. The Court turned down the request to hear expert Guichaoua in court. The Court concluded that the Defence had had ample time, after the written question round, to put questions to the expert before the Examining Judge, and at that occasion had made the choice not to raise any question whatsoever regarding the subject about which the Defence intended to question the expert during the hearing. 50. With respect to hearing witnesses in court, the Court decided that [witness 6] would be heard during the hearing. The Court recognised the ‘extra value’, from the viewpoint of truth finding, of hearing this witness in court, who had made very incriminating statements with regard to the defendant at an earlier stage. As far as the witness was concerned [witness 1], –who had also rendered very incriminating statements about the defendant-, the Court considered his health to be a hindrance to being examined in court. However, a request was submitted to the Examining Judge again to determine, in consultation with the Swiss authorities, whether it would be possible to continue the examination of this witness which had been broken off in January 2012. The requests to take evidence from the other witnesses were rejected. On 15 and 16 November 2012, [witness 6] was heard in Court. On 23 November 2012, [witness 1] was heard by the Examining Judge by way of a video conference. 51. The Court rejected the request to have [witness 14] examined and motivated its decision. Subsequently, the Defence requested the Court to reconsider this decision. After the Court had explained once more (in more detail) why it persisted in its rejection, the Defence challenged the Court, whereupon the Challenge Section of the Court rejected this challenge. 52. On 23 October 2012, the defendant answered the Court’s questions. She did this in French. However, during the hearing on 26 October 2012, she advised the Court that from that moment onwards, she intended to invoke her right to remain silent. When the Court asked the defendant what had changed her course of action towards the proceedings, she answered that the judgement taken by the Court on 25 October 2012 had been the cause. 53. The Court extended the suspension of her pre-trial detention until 20 December 2012, which, at the time, was the intended date for the last word. It should be noted here that during the hearing of 1 November 2012, the Prosecution had demanded the termination of the suspension, because on 23 October 2012, the defendant had given an interview to NOS-television. The Court rejected this demand but added as an extra condition to the suspension that the defendant should refrain from making any statements to the media about her criminal case. On 20 December 2012, the Defence requested the continuation of the suspension of the pre-trial detention until the date of the judgement. The Court rejected this request since in the mean time, the date of the Court’s judgement had become known. 54. [ witness 6] joined these proceedings as an aggrieved party. She submitted a claim for immaterial damage as a consequence of the charges outlined under counts 2 and 6 in the indictment. The aggrieved party appeared in Court to clarify her claim and she was represented by her lawyer, mr. F.P. Holthuis. As a victim of the above mentioned facts, [witness 6] also used her right of speech. 5RWANDA Introduction 1. The charges against the defendant and the decisions by the Court cannot be understood without knowledge of the political situation in Rwanda during the period from 1 October 1990 until mid July 1994. Therefore, in this chapter, the Court will render a brief explanation about that situation. In this respect, the Court’s information is based on publicly accessible sources which, as documents, form part of this criminal file as well as on a report drawn up by the expert appointed in this case, Mr. Guichaoua45 and his answers to questions which were put to him about the subject.46 The Court will limit itself to what is considered to be indispensable for a proper assessment of the (context
4. of)the charges against the defendant. The period up to 1 October 1990 2. In its first judgement (in the Akayesu-case), the Trial Chamber of the Rwanda Tribunal rendered a detailed explanation of the history of Rwanda.47 Below, the Court will quote (parts
5. of)paragraphs from this judgement about the colonial period and the process of decolonisation, focussing on the relation between the different population groups. “80. Prior to and during colonial rule, first, under Germany, from about 1897, and then under Belgium which, after driving out Germany in 1917, was given a mandate by the League of Nations to administer it, Rwanda was a complex and an advanced monarchy. The monarch ruled the country through his official representatives drawn from the Tutsi nobility. Thus, there emerged a highly sophisticated political culture which enabled the king to communicate with the people. 81. Rwanda then, admittedly, had some eighteen clans defined primarily along lines of kinship. The terms Hutu and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage. 81. Both German and Belgian colonial authorities, if only at the outset as far as the latter are concerned, relied on an elite essentially composed of people who referred to themselves as Tutsis, a choice which, according to Dr. Alison Desforges, was born of racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more like them, because of their height and colour, and were, therefore, more intelligent and better equipped to govern. 81. In the early 1930s, Belgian authorities introduced a permanent distinction by dividing the population into three groups which they called ethnic groups, with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes that the reference to ethnic background on identity cards was maintained, even after Rwanda's independence and was, at last, abolished only after the tragic events the country experienced in 1994. 81. From the late 1940s, at the dawn of the decolonization process, the Tutsi became aware of the benefits they could derive from the privileged status conferred on them by the Belgian colonizers and the Catholic church. They then attempted to free themselves somehow from Belgian political stewardship and to emancipate the Rwandan society from the grip of the Catholic church. The desire for independence shown by the Tutsi elite certainly caused both the Belgians and the church to shift their alliances from the Tutsi to the Hutu, a shift rendered more radical by the change in the church's philosophy after the second world war, with the arrival of young priests from a more democratic and egalitarian trend of Christianity, who sought to develop political awareness among the Tutsi-dominated Hutu majority. 81. In1956, in accordance with the directives of the United Nations Trusteeship Council, Belgium organized elections on the basis of universal suffrage in order to choose new members of local organs, such as the grassroots representative Councils. With the electorate voting on strictly ethnic lines, the Hutu of course obtained an overwhelming majority and thereby became aware of their political strength. The Tutsi, who were hoping to achieve independence while still holding the reins of power, came to the realization that universal suffrage meant the end of their supremacy; hence, confrontation with the Hutu became inevitable. 81. Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. (...)" 81. In November 1959 political tension ran high and the first eruption of ethnic violence was a fact. Hundreds of Tutsis died and many thousands of Tutsis fled to the surrounding countries. The disruptions resulted in the end of the Tutsi-monarchy and the proclamation of (First) Republic by Grégoire Kayibanda, leader of the Mouvement Démocratique Républicain Parmehutu (hereafter: MDR Parmehutu), by far the largest political party, who (literally) defined itself as a movement exclusively by and for Hutus. On 1 July 1962, Rwanda officially became independent and Kayibanda became president. 4. The first years of this FirstRepublic were also marked by ethnic violence, with the victims primarily being Tutsis. The MDR Parmehutu-regime considered domination by the Hutus, the “majority population” (rubanda nyamwinshi) which after all accounted for 85% of the population, equivalent to democracy and preached an aggressive and exclusive Hutu-solidarity.48 During those years, Tutsi-refugees regularly carried out small-scale guerrilla attacks in Rwanda. Every time this would lead to acts of retaliation against the Tutsi-population, most of the time encouraged by the authorities and/or executed by Rwandese army units. Once again, this violence drove thousands of Tutsis in exile. In this cycle of violence, flight and armed attacks, during the years between 1961 and 1967 approximately 20.000 Tutsis were killed and about 300.000 Tutsis fled to the neighbouring countries. The local usage among Hutus to call the Tutsi-invaders "inyenzi", cockroaches, stems from this period.49 Also at that time, Hutu-authorities started to accuse Tutsis living in Rwanda of being accomplices ("ibyitso") of these invaders.50 In 1972-1973, a new period of serious ethnic violence against Tutsis followed, resulting again in large numbers fleeing to the neighbouring countries.51 5. These developments in Rwanda –and those thereafter- cannot be seen separately from those in neighbouring country Burundi, in the words of the OAU-report: “Its partner on a deadly seesaw”.52 Burundi had also known a colonial administration; first Germany and then Belgium. In Burundi as well, the population consisted for about 85% of Hutus and for 15 % of Tutsis. And Burundi also became independent in 1962.53 However, different from Rwanda, in Burundi the Tutsi-minority remained in power. Repeatedly recurring eruptions of ethnic violence resulted in the death of thousands of victims. The OAU-report summarises the developments in Burundi as follows: “Since 1962, Burundi's Tutsi minority has dominated successive governments, the army and other security forces, the judiciary, the educational system, the news media, and the business world. In Rwanda, such domination was seen to legitimize the country's own rigid quota system. In Burundi, it has led to a state of almost permanent conflict. The decades-long struggle for power between the elites of the two groups has led to the deaths of hundreds of thousands of Burundians, most of them civilians. Repeated Hutu challenges to Tutsi domination have been followed each time by vicious reprisals by the Tutsi army and police against Hutu civilians that were invariably disproportionate to the original provocation. In the years between independence and the genocide in Rwanda, no fewer than seven giant waves of killings occurred in Burundi: in 1965, 1969, 1972, 1988, 1991, 1992, and 1993.”54 And about the interaction between the developments in both countries, the report mentions: “Victimization of the Tutsi in one country was first aggravated by, and then used to justify, persecution of the Hutu in the other country and vice versa. Each act of repression in the one state became the pretext for a renewed round of killing in the other. Such retaliation was fuelled by the constant refugee movements across the shared border, the inflammatory tales told by all who fled, and the eagerness felt by many of them to join in any attempts to wreak revenge from their new refuge. Perhaps refugees were also emboldened by yet another perverse, common characteristic of the two nations: in both countries, massacres by governments went largely unpunished, and a pervasive culture of impunity began to complement the growing culture of violence that was emerging.”55 6. Mainly regional differences within the Hutu elite, would lead to the downfall of the Kayabanda regime in Rwanda in 1973. General Juvénal Habyarimana, Chief of Staff of the Rwandese army, took power and proclaimed the SecondRepublic. In 1975, he founded the Mouvement Révolutionnaire National pour le Développement (MRND), a party to which every Rwandese belonged from birth.56 A number of years later, Rwanda also officially became a one-party state. The Habyarimana regime ended the ethnic violence, but not the policy of systematic discrimination against the Tutsis57 and it continued not to allow Tutsi-exiles to return to Rwanda. The OAU-report characterises the first twelve years of this regime as “a harsh military dictatorship based on open ethnic exclusion”58, which however enjoyed a excellent reputation in the world, at the World Bank, donor countries and also the NGOs.59 Many a foreigner praised Rwanda as ‘the Switzerland of Africa’: peaceful, stable, hardworking and reliable"60; a country which, especially because of high world market prices of the most important export products such as coffee, tea and tin, and considerable foreign support, booked enormous economic progress and demonstrated favourable social development.61 Nevertheless, even during those years, Rwanda remained a very poor and overpopulated country, one of the least developed countries in the world.62 7. From 1985, the economical and political situation deteriorated considerably. In an economic sense especially because of a combination of bad crops and a sudden, strong decrease of the world market price of coffee which accounted for more than 75% of the income from exports. Thus state income decreased dramatically, which lead to draconic cuts that badly hit the population.63 A particularly dire problem was the increasing shortage of agricultural land and an ever growing false distribution of it.64 Poverty and inequality were increasing. At the beginning of the nineteen nineties, half of the Rwandese population was extremely poor, i.e. not able to feed themselves properly, 40% were considered poor, nine percent as 'not-poor' and one percent as very rich.65 Discontent among the population was fed by the widespread corruption and shameless self-enrichment by the political elite. An example of this is the so-called GBK-project.66 The core of the political elite consisted of a small circle around the president and his wife Agathe Kanziga, most of the time referred to as "le Clan de Madame" or the akazu ('the small house'). This akazu exercised the actual power in the state and used this power for their own gain and for the benefit of a limited clientele of privileged people, mainly from the North of Rwanda (the prefectures Gisenyi, Ruhengeri and Byumba), people from the home region of the president and his wife who, in exchange, supported the president. Privileging the Hutus from the North (bakiga) met growing resistance from Hutus from the other regions. Thus, in deteriorating economic circumstances, Habyarimana’s regime was increasingly confronted with dissatisfaction under the population and opposition from dissident Hutus.67 8. In the meantime, the (descendants
6. of)Rwandese exiles (mainly Tutsis) in Kenya and especially in Uganda, had founded the Rwandan Patriotic Front (hereafter: RPF) in December 1987. The objectives of the Front, a political organisation with a military wing, were to secure the rights of all Tutsi-exiles, a number that had grown to approximately 600,000 persons,68 so they could return to Rwanda, and the termination of the one-party regime of Habyarimana.69 On 1 October 1990, a few thousand RPF-soldiers invaded (the north eastern part
7. of)Rwanda, from Uganda. The attack was successfully countered by the Rwandese government army (Forces Armées du Rwanda, hereafter FAR) and the RPF did not succeed (until 6 April 1994) in conquering a large part of Rwandese territory permanently. Nevertheless, it is beyond dispute, that this invasion should be regarded as, in the words of the OAU-report, ‘one of the key defining moments in Rwandan history’70 and ‘the single most important factor in escalating the political polarization in Rwanda’.71 The Period between 1 October 1990 and 6 April 1994 9. Together with the cynical anti-Tutsi propaganda spread by the government, the invasion by the RPF, which was accompanied by crimes against the civilian population, generated a large stream of refugees of mainly Hutus from the war areas in the north towards the centre of the country. Shortly after 1 October 1990, there were approximately 300,000 refugees.72 After a large scale attack by the RPF in February 1993, the number of domestic refugees increased to about 1 million. This meant that approximately one out of seven Rwandese had left his or her home (and country) because of the war. For the largest part, these refugees were sheltered in overcrowded, provisional refugee camps. The circumstances in those camps were utterly pitiful.73 Moreover, the war caused food shortage and, as a result, a strong increase of food prices.74 Another consequence of the war was the militarisation of society. Within a couple of years, the FAR grew from some thousands to 40,000 soldiers and the share of military expenses in budget increased to almost 70%.75 1. The OAU-report describes how the invasion lent credibility to the ethnic strategy of the regime which was based on the retention of power.76 “The invasion gave an ethnic strategy immediate credibility. The carefully inculcated fears about Tutsi conspiracies - fears about alleged plots to regain control of the republic and launch merciless attacks on all Hutu - that had been dormant for so many years were deliberately revived. The nation was reminded that the Tutsi were, from the first, the “other”; they were all alien invaders. Was is therefore not self-evident that all Tutsi were accomplices of the invaders? Any question of class or geographical division among Hutu had to be submerged in a common front against the devilish intruders. It was not difficult for the government to exploit its own failures in order to rally the majority behind them. In a country where so many had so little land, it took little ingenuity to convince Hutu peasants that the newcomers would reclaim lands they had left long before and on which Hutu farmers had immediately settled.”77 1. In June 1991, President Habyarimana, confronted with the war with the RPF, growing political dissatisfaction, further economic deterioration and heavy international pressure –from a military standpoint, Rwanda depended on France and from an economic standpoint Rwanda depended on various donor countries – was forced to allow the foundation of other political parties and to initiate peace negotiations with the RPF. The first parties that were officially registered, were the Mouvement Démocratique Républicain (MDR), the Parti Social Démocrate (PSD), the Parti Libéral (PL) and the Parti Démocrate Chrétien (PDC).78 Later, more parties were founded and officially registered, including, in February 1992, the Coalition pour la Défense de la République (CDR). The RPF was not registered as a political party. In April 1992, a government was put together consisting of the MRND (in the meantime named: Mouvement Révolutionnaire National pour la Démocratie et le Développement (MRNDD)), MDR, PSD, PL and PDC. With nine ministerial posts, the MRND(D) was the biggest party in this coalition, but formed a minority: the MDR got three ministerial posts, including premiership, the PSD and the PL each got three posts and the PDC one.79 From June 1992, this new government conducted negotiations with the RPF in Arusha (Tanzania) about a peace settlement and a new distribution of power in Rwanda. In July 1992, a cease fire was negotiated; in October 1992, a protocol was signed about the formation of a broad transitional government and a transitional parliament which would include the RPF. President Habyarimana forcibly accepted this settlement without having the intention to execute it. The political landscape was governed by (the relations between) three blocks: the group surrounding Habyarimana, the former opposition parties and the RPF.80 1. The ‘Habyarimana block’ was formed by the MRND(D), which was part of the government, and the CDR, which remained excluded from the government. Both parties collaborated in the Alliance pour le Renforcement de la Démocratie (ARD).81 In the OAU-report the CDR is type-cast as a radical anti-Tutsi-group, which included many members who were, even to Rwandese standards, extremists.82 Prof. Guichaoua regarded the CDR as a party which primarily was at the service of the defence of the achievements of the northern elite.83 He wrote: The CDR enforced the conservative wing of the MRND(D), for whom it served as a stimulus and internal coercive measure.84 As one of its priorities, he mentioned the capitalisation of the increasing hostilities of the population versus the RPF.85 One of the distinctive characteristics of the CDR was its ethnic activism.86 Soon after its foundation, the CDR turned into an extremist party that used coercion and violence.87 Expert Guichaoua also mentioned that it was only natural that the CDR acted as the spokesman for the extremist officers of the FAR. 1. In its judgement in the Media Trial, the Trial-Chamber of the Rwanda Tribunal elaborately described and analysed the organisation, the ideology, the viewpoints and practices of the CDR.88 The Chamber came to the following conclusions: (
8. i)The CDR was a party exclusively of and for Hutus. Its purpose was the promotion of unity and solidarity among Hutus and the representation of the political interests of this majority group;89 (
9. ii)For the CDR, political interests and belonging to an ethnic Group were one and the same thing;90 (iii) The CDR viewed the RPF as the representatives of the political interests of the Tutsis;91 (
10. iv)The CDR considered the RPF, i.e. the Tutsis, as the enemies of the Hutus ;92 (
11. v)The CDR stimulated the use of violence against Tutsis. This was demonstrated in November 1993, when they called on the Hutu-population ‘to neutralise its enemies and accomplices’ (read: the Tutsis) ‘with all possible means’;93 (
12. vi)During the CDR mass-gatherings, the party encouraged its followers to kill Tutsis, which was demonstrated by the singing of the 'Tubatsembesembe' song, which means 'Let us exterminate them'; after these meetings, participants regularly followed these advices and actually used violence against Tutsis.94 1. The newly formed political parties tried to acquire as many followers as possible among the population. Parties made propaganda and held meetings. Often, these gatherings were adorned by song and dance, comparable with the ‘animations’ which had taken place during meetings of the MRND prior to the introduction of the multiple-party system.95 Rwanda did not have a democratic culture, the political climate was strongly polarised and in a process that became known as kubohoza (‘helping to liberate’), parties proceeded to win followers by using rewards as well of threats and violence. Party-activists disrupted meetings held by rival parties and threatened or molested their followers. Violence became a ‘normal’ means to reach political goals. Most of the time, the authorities did not react (adequately), which resulted in politically motivated violence becoming widespread.96 In this, the parties’ youngsters - the Interahamwe (‘those who stand/attack together’) from the MRND, the Impuzamugambi (‘those who have the same/one goal’) from the CDR, the Inkuba (‘Thunder’) from the MDR and the Abakombozi (‘Liberators’) from the PSD – played an important role.97 Especially the Interahamwe and the Impuzamugambi were infamous.98 The members of these groups were mainly found among poor youngsters without land or jobs, without any prospects to build a proper existence.99 According to the OAU-report, they were the 'made-to-order recruits for possible violence' for those parties who would be able to draft them first.100 1. From 1992, the army, fully controlled by Hutu-extremists, gave military training to the Interahamwe and Impuzamugambi, and distributed weapons and ammunition among those groups. That way, the Interahamwe and Impuzamugambi became armed militia which could be deployed against political foes (moderate Hutus) and Tutsi-civilians.101 1. On 8 February 1993, the RPF violated the armistice agreed upon in July 1992 with a large scale attack on the entire northern front. It has already been mentioned (see paragraph 9) that the numbers of displaced persons increased to about 1 million. The attack gave fuel to the already existing distrust of many Hutus towards the RPF and the Tutsi-population group. The former opposition parties felt betrayed by the RPF and the support to the Arusha-peace process decreased.102 1. After the RPF had accepted a new cease-fire and had withdrawn its troops to the original positions, under heavy international pressure the peace negotiations in Arusha were resumed. On 4 August 1993, a final agreement was signed. It included agreements concerning important issues such as the repatriation of refugees, the partial demobilisation and integration of the armed forces of the FAR and the RPF, the formation of a broader transitional government of the MRND(D), the former opposition parties and the RPF, the stationing of an RPF-battalion in Kigali and the posting of a UN-peace keeping force (UNAMIR).103 These agreements, forced upon Habyarimana, met fierce resistance from the akazu – for whom the implementation of the agreements would mean loss of power – and the CDR. 1. On 23 October 1993, Hutu-president Melchior Ndandaye, who had just been democratically elected, was killed in Burundi by Tutsi soldiers in the Burundi army. In the ensuing massacres, an estimated 50,000 Burundians, Hutus as well as Tutsis, were killed and almost 1 million Hutus fled the country, many of them to Rwanda. Once again, these events confirmed and strengthened the fear among the Rwandese Hutus for the (domination
13. by)Tutsis, which fear would be utilised entirely by the opponents of the distribution of power with the RPF as agreed upon in Arusha. In a joint statement, President Habyarimana's own MRND(D) and the CDR denounced the Arusha-agreements as ‘betrayal’.104 1. The attack on 8 February 1993, the Arusha-agreements and the murder of Ndandaye all contributed to the increasing political polarisation. The former opposition parties fell apart into moderate and Hutu Power-factions, with the latter ranking themselves to the side of the MRND(D) and the CDR. Once again, the ethnic contrast (Hutu versus Tutsi) became overpowering. 105 20. There is a great amount of evidence to prove that as from 1990 Hutu-extremists continuously and systematically instilled hatred against their Tutsi countrymen among the Hutu-population.106 Again the Court will quote from the OAU-report: “A constant barrage of virulent anti-Tutsi hate propaganda began to fill the air. It was designed to be inescapable, and it succeeded. From political rallies, government speeches, newspapers, and a flashy, new radio station, poured vicious, pornographic, inflammatory rhetoric designed to demonize and dehumanize all Tutsi. With the active participation of well-known Hutu insiders, some of them at the university, new media were founded that dramatically escalated the level of anti-Tutsi demagoguery.”107 21. Publications in the Kangura newspaper were notorious. In December 1990, an article appeared titled “A Call on the Hutu Conscience”. The article opened with the theory that the Tutsi-extremists (i.e. the RPF) who had attacked Rwanda in October relied on the support of the “infiltrators in the country and the complicity of Tutsis in the country”. Subsequently, the Tutsis were depicted as bloodthirsty and power hungry and Hutus were called to be firm and vigilant against the Tutsi-enemy “who is amongst us and waiting for the right moment to decimate us”.108 The article closed with the “Ten Commandments for Hutus”, in which Hutus were called not to have mercy on Tutsis anymore. Also in later articles in the Kangura the (read: all) Tutsis were depicted as “inyenzi” (cockroaches), “inkotanyi” (members of the RPF), “ibyitso” (accomplices); enemies against whom every Hutu should defend himself without showing any mercy.109 22. From mid 1993, the same messages were propagated in broadcasts of the very popular radio station Radio-Télévision Libre des Milles Collines (RTLM). This radio station was set up by Hutu-extremists who, for the largest part, originated from the three northern prefectures in Rwanda. One of the prominent sponsors was Félicien Kabuga, whose daughter was married to one of the sons of President Habyarimana.110 In its judgement in the Media-trial, the Trial Chamber of the Rwanda Tribunal determined the following111 (486-488): “RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population. RTLM broadcast called on listeners to seek out and take up arms against the enemy. The enemy was identified as the RPF, the Inkontany, the Inyenzi, and their accomplices, all of whom were effectively equated with the Tutsi ethnic group by the broadcasts.” 23. The same message was propagated during party meetings of the CDR and the MRND(D), where music, dance and beer inflamed the audience.112 In one of the speeches held by the Vice-President of the MRND, Léon Mugesera, (kept on record) before party militants on 22 November 1992, one can hear him say the following: “And what are we going to do about all these accomplices (ibyitso) who send their children here to the RPF? What are we waiting for? Why don’t we get rid of these families? (...) We have to take our responsibility and exterminate this scum ... The fatal mistake that we made back in 1959 was to let them (the Tutsis) get away ... They belong in Ethiopia and we know the short way back for them; let’s throw them in the Nyabarongo River ... I stress this point; we need to act ... Exterminate them all!”113 24. A remarkable element in the anti-Tutsi-propaganda was the ongoing warning to Hutu-men not to succumb to the temptations of Tutsi-women. Tutsi-women, as the warning said, were the secret sexual weapon deployed by the inkotanyi to recapture Rwanda. And according to the first of the “Ten Commandments” referred to above, every man who married a Tutsi-woman, made her his concubine or hired her as a secretary, was a traitor.114 25. In the Media-trial, the Trail Chamber of the Rwanda Tribunal established that from 1 October 1990 and within the scope of a campaign in which the Tutsi-population was depicted as RPF-accomplices, regular violent attacks took place on Tutsi-civilians RPF.115 Dr. Alison des Forges describes seventeen violent incidents organised by local authorities during the years 1990-1993, in which a total of more than 2000 Tutsis and dozens of Hutus died and she calls these “rehearsals for the catastrophe to come”. No authoritative figure or civilian has ever been convicted for one of those incidents.116 About these massacres, the OAU-report mentions the following: “On virtually each occasion, they were carefully organized. On each occasion, scores of Tutsi were slaughtered by mobs and militiamen associated with different political parties, sometimes with the involvement of the police and army, incited by the media, directed by local government officials, and encouraged by some national politicians.”117 26. At the initiative of Rwandese human-rights organisations, and ‘International Fact-Finding Commission’ was formed which, in January 1993, conducted an investigation in Rwanda into the violations of human rights since 1 October 1990.118 In its report, the commission described the Tutsi massacres mentioned above (paragraph 25), the widespread terror by the militias, in particular the interahamwe, the paralysis of the judiciary and the violations of human rights by the FAR and the RPF. They concluded that the human rights violations by the RwandeseState were massive and systematic and that the President and the circle around him were responsible for the massacres among Tutsis. In a press release, written by Prof. Schabas, these massacres were called genocidal acts in the meaning of international law.119 27. On 11 August 1993, after a brief mission to Rwanda, the United Nations Special Reporter on summary, arbitrary and extrajudicial executions B.W. Ndiaye published a report about the violations of human rights. His findings included the following: 27. after detailed investigation, the contents of the report by the Fact-Finding Commission may be confirmed for the most part; 27. the MRND and CDR militias are often guilty of threatening and killing human rights activists and opponents of the regime, they stimulate ethnic violence against Tutsis and they cause massacres among the civilian population. While doing this, these militias, oftentimes well armed and trained by soldiers, did not encounter any obstacles whatsoever. 27. for the most part, the victims of these massacres were Tutsis who were attacked exclusively on the basis of their ethnicity; therefore, it could very well be that we are dealing here with (participation
14. in)genocide and/or the incitement thereof.120 28. After repeated delay, the installation of the broad transitional government as agreed upon in Arusha, which would also include the RPF, was planned on 22 February 1994. The day before, Félicien Gatabazi, Chairman of the PSD and Minister of Public Works, was killed in Kigali, a murder which was attributed to (followers
15. of)the CDR. The day after, in the Butare prefecture, the home region of Gatabazi, the Chairman of the CDR, Martin Bucyana, was killed, it is assumed by followers of the PSD. This heralded a new wave of unrest and (ethnic) violence, and yet again, the installation of the broad transitional government had to be postponed.121 In chapter 14, the Court will elaborate on the eruption of violence in Gikondo, the district in Kigali where, at the time, both Bucyana and the defendant lived. 6 April 1994 -mid July 1994 29. Early April 1994, the Arusha-agreements had still not been implemented and President Habyarimana – his country ravaged by political violence and economically on the verge of bankruptcy 122 – was under heavy international pressure to implement them as yet. On 6 April 1994, he travelled to Dar es Salaam (Tanzania) for a meeting about this issue with the heads of state of the surrounding countries. When that same night he returned home his plane that had just started the landing on the airport of Kigali was shot down by a rocket that had been fired from the ground. The plane crashed on the grounds of his presidential palace. All passengers, including President Ntaryamira of Burundi and a number of important staff members of President Habyarimana perished. Until the present day, it has not been discovered who was responsible for shooting down his airplane.123 29. This was the signal to start the mass murders of Tutsis and moderate Hutus, and a resumption of the fight between the RPF and the FAR. Both came to an end when, in mid July, the RPF definitively broke the resistance of the FAR, the interim government of radical Hutus fled the country and the RPF announced a cease-fire. The civil war, started on 1 October 1990, ended in a total victory for the RPF. 31. Between 6 April and mid July 1994, hundreds of thousands of Rwandese were killed in Rwanda. Estimates by experts of the number of victims vary; most of them arrive at between 600,000 and (most probably) 800,000 deaths 124, approximately 10% of the entire population. The vast majority of the victims belonged to the Tutsi-population group. It is estimated that during this period, 75% of the Rwandese Tutsis were killed. As established undisputedly in many (scientific) publications and pronounced by the Rwanda Tribunal in a large number of judgements, these mass murders were executed with the intent to exterminate the Tutsi-population as such. Therefore, there cannot be any doubt that during those months in 1994, a genocide took place in Rwanda. In the words of the Appeals Chamber of the Rwanda Tribunal125: “The fact of the Rwandan genocide is part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge’.” 6THE DEFENDANT 1. The defendant was born in Kinoni on 8 February 1947, préfecture Ruhengeri, as the daughter of [name mother] and [name father]. The defendant was the youngest child in a family of six children, three boys and three girls. Two of her brothers and her father died when the defendant was still young. The family was well-to-do and Hutu. 2. The defendant went to elementary school in Kinoni and for her secondary education she went to boarding schools in Mubuga, Nyundo, Rwaza and Muramba. In 1966, she finished her training as a school teacher. 3. From 1966 until her marriage in 1968, she worked as a school teacher in Kinoni. Subsequently, she worked as a civil servant at the Ministry of Finance and Economic Affairs. From around 1982 up to and including 1994, she worked at the Ministry of Agriculture for the GBK dairy project.126 She was in charge of the sales point in Kigali. 4. On 10 February 1968, the defendant married [X, husband of defendant], also a Hutu and from a rich family. [X, husband of defendant] originated from Nkuli, préfecture Ruhengeri, went to university in Canada (among others) and from 1983 until 1994 he was a member of parliament for the MRND. The couple had seven children, one of whom died as a baby.127 5. From 1970, the defendant and her family lived in the Gikondo district in Kigali. In the nineteen eighties, the family moved into a large, new house, next to Martin Bucyana’s house. The Basebya family and the Bucyana family were close friends. 6. The defendant and her family enjoyed great respect in the district, as stated by the defendant herself during the hearing. She and her husband came from renowned families and both were highly educated. They were well-to-do. In her district, the defendant was commonly known as ‘madame deputé' and as someone with ‘autorité morale’. By former local residents –friend or foe- she has been described as a woman with a lot of energy and with a strong personality. As one of the witnesses remarked, she ‘would not pass by unnoticed’. 7. The defendant would faithfully go to church and she was a member of the choir at the PallottiChurch. 8. The family fled Kigali in mid April 1994. Until July 1994, they stayed in Gisenyi. After that, they moved to Goma and Uvira in former Zaire. At the end of 1994, the family travelled to Kenya via Tanzania. 9. In December 1997, [X, husband of defendant] left Kenya and applied for asylum in the Netherlands. On 25 March 1998, he was admitted as a refugee. On 6 October 1998, the defendant and two of their children arrived in the Netherlands to be joined with him. They lived in Reuver in the province of Limburg. At a later stage, two other children joined them in the Netherlands. On 7 December 2004, the defendant and her husband received the Dutch nationality. 1. In Reuver, the defendant worked as a volunteer in the parish and as a cleaner in the church. She also sang in the choir. 1. From wiretapped conversations and documents seized in the house of the defendant it appeared that until her arrest, she kept in touch with people who are known to be Hutu-extremists, including Léon Mugesera128, Agathe Kanziga, President Habyarimana’s widow129, [VVI]130, [VVJ]131 and [VVK]132. 7THE LIVING ENVIRONMENT OF THE DEFENDANT 1. In the indicted period, the defendant lived in Gikondo. At the time, Gikondo was a secteur of the commune (municipality) Kicukiro in the préfecture Ville de Kigali. The sectors were then divided into cellules. In spite of extensive investigation, the Examining Judge has not been able to determine with absolute certainty which cellules belonged to the secteur Gikondo in 1994.133 2. The file contains a digital presentation of the Gikondo sector. Different locations and houses have been measured, recorded and visualised. Photographs, including air photos of the sector are available. The photos clearly show that the sector in which the defendant lived, was densely populated. In particular the houses on the opposite side of the street of the defendant’s house, are built closely together. The houses are tightly together with small annexes. The alleys in between are narrow, twisted, often rather steep and uneven. Everywhere in the sector there are big height differences. The defendant’s house was situated higher than the houses on the opposite side of the street. The alley on the opposite side of the houses in which witnesses [witness 5] and [witness 6] lived, went down steeply. 3. During the hearing, the defendant stated that the construction of her family house started in the nineteen eighties. It was a large, attractive house with many rooms. An annex had been built at the right side of the house for the domestic staff. In the meantime, the house has been demolished. The Court only has one video-recording of a reception at the house on the occasion of the daughter’s wedding [daughter 1], on 19 February 1994. In that video one can see that the house contained a veranda, a few steps higher than the yard in front of it. The compound had been separated from the street by a long wall, largely made from brick stones; then came a big entrance gate, then some more brick walls and then a so-called imiyenzi (a firm but flexible plant that is often used in Rwanda to serve as a separation wall). 4. The Bucyana family lived next to the defendant, also in a big house on a large compound. Between the two houses there was a bar/boutique, in the file mostly referred to as ‘Roger’s (Bucyana) bar’. On the other side of Bucyana’s house, in the direction of the current round-about, lived the Sefara family, also in a big house. Witnesses [witness 15] and his wife [witness 16], and [witness 17] and her god-child [witness 18] were living in houses located behind the defendant’s compound. 5. On the opposite side of the street there were the homes of [witness 1] and his wife [witness 2], [witness 5] and his wife [victim C], [witness 6] and her husband[victim F, husband of witness 6], [witness 7] and her husband [P], [witness 8] and [Q], [R] and [S]. 6. At the end of the street where the defendant lived, diagonally opposite her house, there was the market. It was situated a bit lower than the street. At the other end of the street, shortly behind the current round-about, there was the PallottiChurch. 7. Expert Prof. Guichaoua has described Gikondo as a strategically favourable sector because of its situation and the commercial and industrial activities. Gikondo had a heterogeneous population. Hutus and Tutsis mixed with each other. In socio/economic regard, the sector was populated with some notables, salaried people (low/high educated), small shopkeepers, craftsmen, market vendors and, at the lowest step of the social ladder, the so-called abakarani. Abakarani is the Kinyarwanda word for porters and carriers. These were the disadvantaged youngsters who made a few francs with their porter’s jobs. 8. Prof. Guichaoua also described Gikondo as a sector which was interesting in political regard since many prominent members of the extremist pro-Hutu movement lived there. Besides Martin Bucyana, chairman of the CDR, those were [victim B], 2nd vice-chairman of the CDR, Gaspard Gahigi, RTLM’s editor in chief, Jean Sefara, an MRND negotiator, Séraphin Twahirwa, cousin of President Habyarimana and Jean Ntawutagiripfa a.k.a. Congolais.134 Others who lived in the sector were [T], a CDR-leader in the Sgeem cellule, [U], a local representative of the CDR and [V], a former soldier, 'responsable' of the Mburabuturo cellule. 9. From 1992, according to Prof. Guichaoua, the Interahamwe and Impuzamugambi laid their hands on the Gikondo sector. First, regular tension arose between both youth movements, but soon the ideological choices hardly compensated for the possibilities of crime and impunity offered to the unemployed youngsters.135 During the political radicalisation in the last months of 1993, Gikondo became the focus of the political activism of the MRND and CDR, especially because of the prevalence of their youth movements becoming increasingly stronger. Actually, the MRND and CDR had a monopoly in this sector of the capital.136 1. As an enclosure to his report, Prof. Guichaoua added a letter of 15 July 1992, from Chief Public Prosecutor François-Xavier Nsanzuwera, addressed to the Procurator-General at the Court in Kigali, in which Nsanzuwera reports about the riots in the Gikondo sector between 9 and 11 July 1992. This shows that large groups of youngsters from different political parties were involved in fights with each other, which resulted in victims among the normal civilian population. He had ended his letter by criticising the responsible civil authorities and the police who – briefly stated – had stood aloof from the riots or had even been in support of the Interahamwe.137 1. The file also contains a newspaper article (Umurava magazine no. 15, dated 10 February 1993) which mentions that the Gikondo riots had been caused by the Interahamwe and CDR, since they had started, on 31 December 1992, to block the roads, to steal, to plunder, to murder and to destruct.138 8THE ASSESSMENT OF THE EVIDENCE General remarks 1. The Court puts first that the person who is criminally prosecuted, will be considered not guilty by the prosecuting and judicial authorities until – beyond a reasonable doubt – his guilt has been established by law. In order to establish the individual criminal liability of the defendant with respect to the charges and the consequences of that liability, it shall have to be determined whether the defendant has committed the offences as charged, that the proven facts are punishable and, therefore, the defendant is liable to punishment. 2. As far as the evidence is concerned, this case is governed by Dutch law. This means, among other things, that only the means referred to in article 339 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereafter: Sv) shall be regarded as legal evidence, and that the rules for minimal evidence in articles 341-344a Sv shall be applicable. Pursuant to article 342 paragraph 2 Sv – which refers to the total charges and not part of them – the judge cannot rule that the alleged acts were committed by the defendant on the basis of the statement from only one witness (the ‘unus testis nullus testis’-rule). This rule serves as a guarantee for the validity of the evidence decision, in the sense that it bars the Court from declaring the charges proved in case the facts and circumstances brought up by one witness are isolated and do not find any support in other evidence.139 3. Furthermore, one of the principles of Dutch law is that the Court is free in its selection and assessment of the (legal) evidence. The Court will always view these evidential facts together and in relation to each other. 4. The evidence for the actual commission of the facts as charged to the defendant mainly consists of statements from (eye)witnesses. The NCIS has interviewed 65 witnesses and the Examining Judge has heard 70. The Court has heard one witness in court. 5. Furthermore, the file contains testimonies from witnesses which have been rendered before: 6. the Rwanda Tribunal, in the form of a witness statement; 7. the national gendarmerie, Gikondo brigade; 8. - gacaca courts; 9. Danish authorities; 10. Canadian authorities; 11. The Parquet Général in Rwanda. 6. To the Court, the incriminating statements rendered by the witnesses either in court or before the Examining Judge are of primary importance. These statements have been rendered before a judge and were explicitly directed at the guilt or innocence of this defendant. Besides, during these witness examinations, both the Prosecution and the Defence had the opportunity to examine the witnesses in detail and to test the credibility of the witnesses and the reliability of their statements.140 It is also important that the court records of the testimonies before the Examining Judge contain a 100% literal rendition of the statements from the witnesses (see chapter 4 above, paragraph 23). 7. Less conclusive force is attributed to the statements rendered before the NCIS. Although the examinations by the NCIS were also directed at the defendant’s possible involvement in the facts as charged to her, the testing possibility of the statements, in particular by the Defence, was lacking and the records of the statements were not as detailed as the ones drawn up by the Examining Judge. 8. The Court will only take notice of the statements rendered before non-Dutch judicial authorities within the scope of the assessment of the reliability of the statements from the witnesses who testified in this criminal case. 9. The same shall apply to statements which have been rendered in the gacaca procedures. However, also in this respect these statements can only be used partially. In general, the persons who rendered statements before the gacacas were not questioned about the reasons for their knowledge, and in most cases the reports of these hearings are incomplete and not transparent. Reliability of the witnesses statements 1. Witness statements are based of the memory of the witnesses. Although most memories of sincere witnesses are reliable141, memories are never a complete and accurate rendition of reality. Human perceptivity is limited, matters are forgotten and mistakes may be made when remembering things. The cause for such mistakes is often a form of confusion of sources, also called source amnesia. Internal processes as well as external factors may alter or add to the memory track of the original experience. In this respect, the problem may be that the source of these alterations or additions is not noticed or is forgotten. This source may consist of internal processes, such as selective observation and interpretation of the original event or of a reconstruction while remembering the event. The source may also consist of external factors, such as the integration of information obtained later in the memory track, or the acceptation of suggested events as real recollections.142 1. The assessment of the credibility of the witness and the reliability and acceptability of his statement in this case is a difficult task. The criminal case against the defendant involves facts which, if proved, concern offences which took place approximately twenty years ago. This time lapse in itself calls for great cautiousness. This cautiousness is all the more relevant since this case concerns events in a country that in political, cultural and socio-economic aspects showed and still shows little resemblance with Dutch society and, in addition, a country which was torn by deep political and ethnic differences and an armed conflict as a result of all this. That is why, in many respects, the Court cannot rely on facts and circumstances of ‘common knowledge’, while understanding political and social relations known to us, is considered to be of limited value. 1. Dutch legislation does not provide ‘hard criteria’ based on which a assessment can be made whether or not a witness is credible and his statement reliable. However, it is a commonly accepted principle that the Court needs to find out whether a testimony in relation to the persons who gives it, the circumstances under which it was given and the factual information it contains, is sufficiently reliable and acceptable to serve as evidence. The assessment frame The Court shall judge the witness statements according to the following points of attention: the personality of the witness; the circumstances under which the statement was rendered; the consistency of the witness’s statements; the question whether the statement is confirmed by statements of other witnesses; the question whether the statement is confirmed by other (objective) evidence; the plausibility of the statement. The personality of the witness 1. The Court will try to find out whether circumstances have arisen which could have a possible influence on the credibility of the witness. For this purpose, it will investigate whether the witness has any involvement in the criminal offences as charged, or whether the witness has an interest or a motive – personal, ethnical, financial or other – to render, incompatible with the truth, an incriminating statement concerning the defendant. It may be important to know whether the witness knows the defendant personally and if so, in what relation and context, and also whether the witness knows one or more of the other witnesses who render incriminating statements. The Court will also investigate whether the witnesses have been able to distinguish what they have seen personally from what they have heard from other people (hearsay). The Court will also notice disrupting effects as a consequence of cultural differences. Attention will be paid to such matters as the witness’s awareness of time, space and distances and/or the ability to orient himself with the aid of maps, photo and video material, and the way in which the witness reacts to questions and how he answers them. Many witnesses in this file are traumatised witnesses. It cannot be said that a traumatised witness is less reliable than a non-traumatised witness, although recollections of central details of a traumatising incident are often more accurate and complete than recollection of peripheral details of the same incident. Two possible reasons for this are: the attention is focussed on threatening, central details of an incident (the so-called “weapon focus effect”).143 and in addition tot his, the borders of the traumatic image will narrow (“boundary restriction”). This means that background details will be observed less, which will result in elements in the margin of an emotional image to be forgotten.144 1. In this file, three witnesses appear who where a child at the time of the incidents, being [L], who testified about the murder of her mother [victim C] (count 3) and [W] and [Z], who testified about the death of [victim A] (count 1). (Judicial) psychological examination has shown that the recollections of children are indeed accurate and that they are capable of telling accurately about events that took place years earlier. 145 Therefore, a priori there are no reasons to believe that statements rendered by children are not reliable because of the child’s age, even in cases where children tell about events that took place years ago. The circumstances under which the statement was rendered 1. The Court will try to find out whether the circumstances under which the witness rendered his statement or the way the statement came about may have been of influence on the reliability of the contents of the statements. In this respect, the following issues are relevant: the manner in which the questions are asked, the type of questions, the contents of the questions, the order of the questions, the duration of the examination and the attitude or behaviour of the interviewer. It is also important whether there are indications of communication problems or misunderstandings between the interviewer and the witness or between the interpreter and the witness. Furthermore, it is important to establish whether prior to the testimony, the witness has been in contact with one or more other witnesses who incriminate the defendant and whether he has spoken to these other witnesses about the case. 1. In this respect, the Court would like to point out that the documentation submitted by the Examining Judge renders a faithful picture of how the testimonies were obtained. The consistency of the witness’s statements 20. Consistency of consecutive statements by a witness is, in itself, no guarantee for the credibility of the that witness or his statements, nor does each inconsistency affect the credibility or reliability. However, with respect to matters that are material to the evidence, if a witness states significantly different before the NCIS (or a non-Dutch authority) than before the Examining Judge, it will have to be examined critically whether this will jeopardise the conclusive force of the evidence in his statement rendered before the Examining Judge, which statement, as considered above, is of primary importance to the Court. In national and international law it is generally recognised that inconstencies may arise as a result of the manner in which the interview is conducted, the passage of time, the chaotic nature of the events about which the witness is interviewed, the emotional memories these traumatic events may trigger in the witness, differences in culture, language problems and mistakes by the witness or other persons involved in the proceedings. 21. Below, the Court will quote paragraph 31 of the judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Kupreškic case: “The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable. Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence. However, the Trial Chamber should consider such factors as it assesses and weighs the evidence."146 Reference may also be made to paragraph 113 of the judgement of the Trail Chamber of the ICTY in the Furundžija case147, in which the consideration is made that inconsistencies may actually be an indication of the fact that the witness has not been influenced and is speaking the truth. 22. The Court determines that in appropriate cases, the Examining Judge, each time, brought the inconsistencies to the attention of the witnesses and that he recorded the witnesses’ reaction to them. 23. Finally, it should be noted here that the inconsistency test cannot be performed on statements before the Examining Judge by witnesses who had not been interviewed earlier by the NCIS or a non-Dutch judicial authority. However, it has struck the Court that there are quite some statements rendered by witnesses for the Defence which, on essential points, deviated from the expectations that had been raised by the explanation given by the Defence in their request to hear these witnesses. Testing the testimonies against other witnesses 24. Of course it is also important whether a testimony differs – significantly and on essential points – from other testimonies or whether it is in accordance with statements from other witnesses. First, it is important to determine whether witnesses give testimony about the same actual incident(s). If such is the case, it should be considered that different witnesses may have observed only part of such an incident. Furthermore, it should be noted that discrepancies may arise from the factors which are referred to above (paragraph 20) as possible explanations for inconsistencies. 25. An important point of attention in this case is the circumstance that as opposed to the witnesses who have rendered incriminating statements, there are many statements of witnesses who seem to exonerate the defendant in all respects. In Chapter 11, the Court will pay attention to this phenomenon in particular. Assessing testimonies in relation to other (objective) evidence 26. The possibility to test statements from witnesses against (objective) information is very limited. The file contains documents (including books, reports, articles and quotations from the ICTR) which paint a picture of the developments in Rwanda and in some cases, more specifically in Gikondo during the charged period, as well as a DVD with images of a CDR-meeting in Butare on 5 December 1992.148 As far as the attack on the Pallotti Church on 9 April 1994, witness statements may be compared to the factual observations and ascertainment by the Rwanda Tribunal. In addition, there is video material about the living environment of the defendant as recorded and collected in the course of these proceedings. The file also contains a death certificate “certificat de décès” dated 22 February 1994 of [victim C]149, signed by Doctor M.F. Gillieaux.150 Finally, witness statements may be assessed in view of the results of the special investigative actions used (wiretapped telephone conversations and the recording of confidential communication (OVC)) and documents in the file concerning the defendant and her family. The plausibility of the testimony 27. When judging the plausibility of the contents of the witness statements great reticence should be observed. Given the special and extreme circumstances in Rwanda during the charged period, something that cannot really be imagined from one’s own reference may be possible after all. Conclusion 28. Assessing statements incriminating the defendant on the basis of the above mentioned points of attention may affect their conclusive force. This may result in the total dismissal of the statement in question, but it is also possible that only parts of the statements will not be used as evidence. 29. Finally, the Court would like to stress that, each time, it will consider (the credibility
16. of)the witness statements in relation to and in connection with other statements and/or additional evidence. In respect to this, the Court agrees with the judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Kupreškic case: “[...] the Appeals Chamber emphasised the importance of assessing the credibility of a witness in light of the trial record as a whole. The Appeals Chamber has reiterated the importance of such a holistic approach to assessing credibility within its own jurisprudence: A tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear at first to be of poor quality, but it may gain strength from other evidence in the case”.151 9GENERAL MERITORIOUS DEFENCE 1. In its plea, the Defence, prior to a discussion concerning incriminating witnesses, made some general remarks about the rendition of incorrect, or even more specific: purposely incorrect statements. Within that scope, the Defence has made reference to the cautious findings of Professor Dr. Nancy Combs in her book “Fact-finding without facts”152 saying that in Rwandese society, lying is considered less of a problem than in western countries. As a specific reason for the rendition of false statements, the Defence mentioned the desire to contribute to the conviction of their client because she is obviously regarded as a génocidaire, a firm belief that cannot be based on anything more than the fact that she is a Hutu from the north who lives abroad. From that belief, witnesses may invent evidence in order to blame her for specific acts. Rwandese society is impregnated with the conviction that only Tutsis were victim of the genocide and Hutus the perpetrators. It may very well be that anger about the sufferings during the genocide and general feelings of revenge have played a role in the statements rendered against the defendant. In this respect the Defence has also indicated at the activities of Ibuka, a victim organisation which would not refrain from inciting witnesses to render false statements, often accompanied by promises of material compensation. According to the Defence, some of the false statements may have been triggered by some sort of ‘group truth’ created in the gacacas and repeated by others. In this respect, the Defence made reference to a Human Rights Watch-report about the legal proceedings in a gacaca-courts.153 It describes the circumstance that in the gacaca-courts many false statements are rendered which originate from ethnic animosity as well as personal conflicts and financial motives. 2. These considerations will not result in a general meritorious defence. After all, the Defence does not link the above mentioned considerations – justly so – with the conclusion that all incriminating witnesses in this criminal case have rendered false statements or, whether or not in good confidence, repeat lie after lie. The Court conceives the Defence’s argument as a stimulus to assess the incriminating testimonies with a critical eye. In the previous chapter, the Court already emphasised that great cautiousness should be exercised, and explicitly pointed at the possibility of witnesses having personal, ethnic, financial or other motives or interests to render, contrary to the truth, incriminating statements. The Court has also indicated that it is very important to ascertain whether witnesses are capable of making the distinction between what they have seen personally or what they have heard from others. The fact that the Examining Judge has been very alert to this may be shown by the manner in which he interviewed the witnesses and the way he recorded these interviews. In this respect, the Court especially refers to paragraph 24 of Chapter 4. 3. The Court understands that the Defence has put forward three more or less meritorious defences. These are: 4.
17. i)the argument that we are dealing with a “conspiracy” of incriminating witnesses; (
18. ii)the argument that the incriminating testimonies must be false since defendant socialised with Tutsis and saved the life of a number of them; (iii) the argument that the incriminating testimonies must be false since there are no less than 44 witnesses who exonerate the defendant from any involvement in the acts as charged to her. 4. In this Chapter, the Court will discuss the arguments under (
19. i)and (ii). The argument under (iii) will be discussed in Chapter 11. The alleged conspiracy 5. According to the Defence, there is a “group of profiteers”154, “cunning cheats”155, persons who are linked with each other by family and/or friendly ties and who have, at some point, agreed with each other to falsely accuse the defendant. The sources of these false accusations are witnesses [witness 6] and [witness 1]. The group also includes [witness 2](the wife of [witness 1]), [witness 5], [witness 8], [witness 19], [witness 7] and [witness 20]. According to the Defence, this group is after the real estate property owned by the Bucyana, Sefara and Basebya families who had fled Gikondo after the genocide, or they want to gain financial advantages as a result of the escape of these families. About eleven witnesses surround this group which they follow in their intent to give false testimonies with regard to the defendant. 6. In the first place the Defence substantiates its arguments by making a reference to the so-called “plundering file”156. In this respect, the Defence asked for special attention to the letters from [witness 8], [witness 5], [witness 19] and other to the executive secretary of the gacaca-tribunals at a national level, in which they complain about the behaviour of Jean-Bosco Kaboyi, a local official in Kigarama, and gacaca-judge Martin Rutajoga. The Defence also made reference to articles in the Rwandese newspaper Rugari, in which a journalist describes the - in the words of the Defence – “shady practices” of “[witness 19] and [witness 8] and their friends”. In this respect, the Defence has also pointed at the false statements (her words) rendered by [witness 6] and [witness 1] in March 1995 in an investigation into [witness 14], and the judgement of the court in Kigali dated 8 August 2003, in which [witness 14] was acquitted.157 7. The plundering file contains a number of gacaca-documents concerning the latest reconsideration of the plundering cases against Martin Bucyana and others, including the defendant. The Court has observed that during the most recent witness interviews of [witness 8], [F], [witness 19] and [witness 10], the Defence exclusively concentrated on the possible role of these witnesses in the plundering file. The image that is depicted in these interviews is that these witnesses are indignant about the behaviour of said Kaboyi and Rutajoga during the proceedings initiated by them and that they, together with others, have complained about this in letters to Service National des Juridictions Gacaca (SNJG) and other authorities. These complaints involve shortcomings in the gacaca-proceedings and the fact that gacaca-judgements in which damages were allocated, have never been executed. 8. The Court puts first that when plaintiffs act jointly in legal proceedings, even when their interest differ, contrary to the obvious assumption of the Defence, this does not have to raise suspicion. The same applies to jointly writing letters with complaints about the behaviour of public services or government officials, even when it is assumed that the complaints are unfounded which, in this case at least, does not have to be the case at all. In no way whatsoever it has been demonstrated that in this case, the joint action by the plaintiffs/complainants is the result of a conspiracy of liars. Neither the gacaca-documents, nor the letters and the witness statements offer any reference points in this respect. 9. The Court adds to this that as far as appears from the file, of all witness who have been blamed by the Defence for having their own motives, only [witness 5], [witness 20] and [witness 6] have, at some point, claimed damages from the defendant (and/or her husband) in gacaca-proceedings. Furthermore, it has been established that [witness 1] - according to the Defence one of the core members of the conspiracy – and his wife, do not have anything to do with these letters and, on the basis of her statement during the hearing, it may be assumed that [witness 6], the other core member, was not aware of this. 1. In this respect the Court wishes to note that among the witnesses branded by the Defence as a group of profiteers, there are persons who do not, or who hardly get to see each other. [Witness 6] stated that she has not seen [witness 20] since 1996 158 and also the Defence is convinced of the fact that [witness 1] (and [witness 2]) and [witness 6], initially good friends, have not seen each other, or have not wanted to see each other for many years. 1. Furthermore, it has struck the Court that the Defence has not reacted to the obvious question from the Prosecution in its closing speech what, actually, may be obtained from the defendant in the end. Now that the defen