Friday, 1 March, a Dutch District Court will deliver its judgment in the case against Yvonne B. This is the second Dutch criminal case concerning the mass violence that took place in Rwanda in 1994. It is also the first prosecution for genocide in The Netherlands since the Second World War. In its final brief of November 2012, the Public Prosecutor has demanded a sentence of life-imprisonment.
There are a number of important issues in this case, on which a Dutch Court has never before given judgement. How is the case structured and what are the main issues?
Accused The accused is 66-year old Yvonne B. Born within a well-to-do family in Ruhengeri préfecture and married to a former Rwandan Member of Parliament. In the 1990s, the accused lived in the Gikondo district of the Rwandan capital Kigali. On 13 April 1994, she fled the capital and in July 1994 she left Rwanda. Via Congo and Kenya, she arrived in The Netherlands in 1998. In 2004 she acquired Dutch citizenship.
Background to the case The case against Yvonne B. concerns facts that took place in Rwanda between 1990 and 1994. During the Rwandan genocide, an estimated 800,000 Tutsis were killed between April and July 1994. The genocide was preceded by four years of aggressive hatemongering, propaganda, and the formation of youth militia. These militia consisted mainly of underprivileged youths who, in the years before the genocide, were recruited, indoctrinated and incited to violence against members of the Tutsi ethnic group. Youth militia had a major share in the murders, rapes and other attacks on Tutsis in 1990-‘94. The Interahamwe-militia belonging to the MRND political party and the Impuzamugambi-militia of the CDR political party are particularly notorious. This latter party, the CDR was founded in 1992 by Hutu-hardliners and is reputed to be the most extremist anti-Tutsi party of its time. According to witnesses, Yvonne B. was known as one of the prominent members of the CDR in her neighbourhood.
The investigation and Court hearings The case against Yvonne B. is a spin-off of another Dutch investigation, in the course of which investigators found information about the role played by Yvonne B. during the Genocide in her residential neighbourhood. Her Netherlands home in the town Reuver was searched by the Police in June 2010. In the course of the investigation more than 50 witnesses have been interviewed (witnesses for the defence as well as for the prosecution) in countries such as Rwanda, Belgium, Malawi, Kenya and France. The substantive proceedings before the District Court in The Hague lasted from 20 October to 21 December 2012. Defence requests to bar prosecution and to impeach the Court were rejected.
The allegations The allegations against Yvonne B. are that in the period 90-94 she was a prominent extremist in her residential neighbourhood and that, together with other extremists from the area, she formed a militia that has subsequently been responsible for murders and other serious crimes against Tutsis and moderate Hutus.
The militia was mostly recruited from poor youngsters (mostly porters from the local market; abakarani). During 1992-1994, they visited extremist gatherings. Witnesses state that the accused played a leading role during these gatherings, at which hate and violence were taught, at which people spoke of and sang songs about the killing and extermination of Tutsis, at which Tutsis from the neighbourhood who were deemed especially dangerous were discussed and at which lists were compiled with names of Tutsis who were considered to be supporting the enemy. The members of the militia who attended these gatherings allegedly terrorised the neighbourhood en were closely involved with murders and other crimes against Tutsis in 1994, inter alia the attack on Tutsi's in a church and the hunt for Tutsis who had gone into hiding in the neighbourhood.
These allegations are based on evidence of at least 19 witnesses (insiders as well as victims, Hutus as well as Tutsis), which are supported by the results from the house-search and other investigative methods, in particular the telephone and internet taps.
These allegations have been charged - in brief - as: 1. co-perpetration or instigation of genocide, attempted genocide and murder (including various modes of criminal liability); 2. Conspiracy to commit genocide; 3. War crimes; 4. Incitement.
The suspect denies all charges. She has stated that she has not been politically active with the CDR or in any other way. She has further stated that she had nothing to do with youth militia and that she did not play a leading role at their meetings. She claims that the witnesses for the prosecution do not tell the truth and that they have various motives for being untruthful (among which, possibly, financial motives).
Auctor intellectualis The prosecution of auctores intellectuales, persons who play an important role behind the scenes, is generally more complicated than the prosecution of offenders who killed with their own hands. Besides, especially where international crimes such as Genocide are involved, there is still little (Dutch) case law in this field.
Especially with more serious and ‘organised' criminality such as genocide, people are involved who prefer to remain behind the scenes, while others carry out ‘the work'. Nevertheless, it is important that prosecutions are not limited to direct perpetrators, and also target these auctores intellectuales.
This is what the case against Yvonne B. is about. The accused did not kill people with her own hands. Nevertheless, the Prosecution has stated that it was because of the years that she acted as leader of the militia - a role she kept playing also after (lethal) violence had been used - from a legal point of view she is just as responsible for the violence as the young men who actually committed the murders; that she is co-perpetrator or inciter of those crimes and that she should be punished accordingly.
From the closing speech of the public prosecutor: ‘....The accused did not use a machete or bat herself. Her actions were much more dangerous and destructive. In a period of war she instigated young boys with machetes and bats by teaching them hate, fear and violence and by urging them to kill Tutsi's. Through these actions she was a thriving force behind the massive violence in her local community and therefore can be held accountable as one of the most responsible for these crimes.
As a consequence, one of the key questions in this case is how the Court - in case of a full or partial finding that the facts have been proven - will view the legal qualification of this type of action behind the scenes. A decision on this issue will be of great importance for the development of Dutch jurisprudence in this largely uncultivated field. It is also important for the severity of the sentence: The maximum penalty according to Dutch law for co-perpetration or incitement is imprisonment for life. The maximum sentence for instigation to commit genocide has been raised to 20 years in 2003, but in 90-94 - the period relevant to that this case - it was five years.
Investigation and Prosecution of International Crimes The Netherlands take the position that perpetrators of international crimes must be brought to trial and it does not wish to be a safe haven for genocidairs, war criminals, torturers and other perpetrators of international crimes. This is the reason that the National Public Prosecutor's Office and the International Crimes Team of the National Police are actively engaged in the investigation and prosecution of these crimes. Some perpetrators of international crimes are Dutch nationals and some have come to The Netherlands along with the flow of refugees as a result of an armed conflict. It is often the elite, the people with money and connections who have landed in the West.
The starting point is that perpetrators of international crimes should be tried in the country where the crimes were committed. In some cases, however, this is not possible. In such cases, two possibilities remain: investigation and prosecution in The Netherlands or nothing happens and The Netherlands will become a refuge for war criminals and genocidairs. Moreover, it should be kept in mind that victims of international crimes are living in The Netherlands as well. They run the risk of coming across perpetrators from whom they escaped.