The Prosecutor v. Yvonne Basebya
| Court |
District Court of The Hague, The Netherlands |
| Case number |
09/748004-09 (LJN: BZ4292) |
| Decision title |
Judgment |
| Decision date |
1 March 2013 |
| Parties |
- Public Prosecutor
- Yvonne Basebya
|
| Categories |
Genocide, War crimes |
| Keywords |
Conspiracy to commit genocide; genocide, incitement to genocide; war crimes |
| Links |
|
| Other countries involved |
|
back to topSummary
The current case, the first case for genocide charges before a Dutch court, took place against the Rwandan Yvonne Basebya. She comes from a wealthy family and married with Augustin Basebya, a high-ranking politician for the National Revolutionary Movement for Development (NRMD). Rwandan authorities alerted the Netherlands about Augustin being listed as wanted in Rwanda in 2007. Investigations followed, leading to Yvonne being suspected as well; ultimately, Yvonne was arrested in 2010 on suspicion of involvement in the Rwandan genocide.
The District Court of The Hague ruled on 1 March 2013 that Yvonne’s guilt on several of the (complicity in, and conspiracy to commit) genocide and war crimes charges could not be established. However, her repeated singing in public of the notorious anti-Tutsi song “Tubatsembatsembe” (meaning: “Let us eliminate them”) before the youth, unemployed and lower or uneducated and using her local notable upper-class position, combined with her repeatedly (even until the day of the judgment) expressed hatred against the Tutsis, did qualify as incitement to genocide. She was sentenced to six years and eight months in prison pursuant to the Dutch War Crimes Act: the maximum sentence at the time (which the Court regretted, noting that the 2003 International Crimes Act which replaced the War Crimes Act had changed this to 30 years).
back to topProcedural history
In May 2007, Rwandan authorities together with human rights organisation African Rights alerted Dutch authorities that Yvonne’s husband, Augustin Basebya, was on the Rwandan police’s wanted list, due to involvement in the extremist Hutu party Coalition pour la Défense de la République (CDR). On the basis of subsequent investigations, the Dutch authorities decided to broaden the scope of their investigation to include Yvonne. Following surveillance and the hearing of witnesses (inside and outside of Rwanda), Yvonne was arrested in the Netherlands on 21 June 2010.
The investigative judge, together with the prosecutor and Yvonne’s defence counsel, visited Kigali, Rwanda, in September 2010. Ensuing investigations resulted in the prosecutor’s case being built on statements of 71 witnesses. The trial before the District Court of The Hague ultimately commenced on 22 October 2012 (para. 4).
back to topRelated developments
On 28 June 2013, both the National Public Prosecutor's Office and the defence decided not to appeal the judgment, which means that the judgment of the District Court of The Hague is final. Yvonne Basebya is the first Dutch citizen to be prosecuted for alleged involvement in the Rwandan genocide and the first person to be convicted of incitement to genocide in the Netherlands.
After Joseph Mpambara’s trial, this is the second Rwandan case held in the Netherlands and it is likely to be the last one. After the European Court of Human Rights’ decision in the Sylvère Ahorugeze case, ruling that Sweden could extradite a Rwandan genocide suspect to Kigali, it is likely that the Dutch authorities shall prefer to extradite those suspects of the 1994 Rwandan genocide that reside in the Netherlands for trial in Rwanda.
back to topLegally relevant facts
Yvonne Basebya was born in 1947 in Rwanda. During the Rwandan civil war (1990-1994) she married Augustin Basebya, a member of Parliament for the National Revolutionary Movement for Development (NRMD). This party was closely linked to President Habyarimana, whose death on 6 April 1994 was the spark that led to the Rwandan genocide. Yvonne Basebya came to the Netherlands in October 1998 and on 7 December 2004 she obtained the Dutch nationality.
Her indictment primarily alleged that she, together with others, had murdered and raped several Tutsis in Kigali (inter alia during a massacre in the Pallotti church) with the intent to (partially) destroy the ethnic Tutsi group, either through active and intentional participation in these acts of genocide or through inciting others – by way of her influential position in the CDR, her singing of the notorious anti-Tutsi song “Tubatsembatsembe” and her providing of Interahamwe and Impuzamugambi militia members with food, beer, money and arms – to eradicate all Tutsis. Furthermore, she was accused of attempt, conspiracy and incitement to genocide, inter alia by her continuous singing for, recruitment of and facilitation of militia members. And finally, the indictment accused her of war crimes against civilians in the non-international armed conflict that took place in Rwanda (para. 1.2).
back to topCore legal questions
Is Yvonne Basebya – either directly, or through attempt, conspiracy or incitement – criminally responsible for multiple acts of murder and (severe) injury of Tutsis, with the intent to (partly) destroy the Tutsi population (thereby perpetrating genocide)?
back to topSpecific legal rules and provisions
Genocide Convention Implementation Act, 1964, Netherlands:
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Article 1(1) and (2)
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Article 3
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Article 5(1) and (2)
Act on Criminal Law in Time of War (War Crimes Act/Wet Oorlogsstrafrecht), 1952, the Netherlands [in Dutch only]:
International Criminal Offences Act (Wet Internationale Misdrijven), 2003, the Netherlands:
back to topCourt's holding and analysis
In its analysis of the case, the Court commenced with assessing its competency to hear the case at all, since it considered crimes committed outside the Netherlands, against non-Dutch victims by an at the time non-Dutch suspect. It ruled that it was indeed competent, as Dutch criminal law at the time of the crimes – despite lacking universal jurisdiction – allowed for the prosecution of genocide perpetrators who had gained Dutch nationality after committing those crimes (para. 2.2). The War Crimes Act, however, established universal jurisdiction for war crimes (para. 2.4). Furthermore, the Court noted that the 2003 International Crimes Act introduced universal jurisdiction for acts of genocide and war crimes committed after 23 October 1970. However, it found that incitement to genocide – which is a separate crime – committed before 1 October 1991 had become time-barred on 1 October 2003, when the International Crimes Act entered into force. Therefore, the Court held that Basebya could not be prosecuted for all charges of incitement to genocide relating to acts before 1 October 1991, whereas the time limitation on all acts after that date had been repealed by the 2003 International Crimes Act (paras. 3.11-3.14).
Considering the evidence before it, the Court was not convinced about Yvonne’s involvement in many of the alleged acts of genocide. In many cases, evidence was not strong enough to support her involvement, or her involvement was not intense enough to lead to criminal responsibility. With regard to the war crimes charge, the Court could determine that Yvonne was in any way involved in the military, or in the armed conflict; on this point alone (no nexus with armed conflict), her responsibility for war crimes could not be supported (para. 19.37). However, the Court did find proven beyond doubt that Yvonne had, between 22 February and 6 April 1994, in the neighbourhood where she lived and where she enjoyed a high and notable reputation, by repeatedly singing the “Tubatsembatsembe” in public, intentionally incited people – mostly the youth, the uneducated and the unemployed – to commit genocide against the Tutsis (para. 22.4-5).
On 1 March 2013, the District Court convicted her for the crime of incitement to genocide: it stated that 'incitement to genocide is an international crime which is one of the most heinous crimes in the Dutch and international legal system’. It regretted that Dutch law, at that moment, provided for a maximum sentence for incitement of only five years (the 2003 Act changed this into 30 years) (para. 22.6). Because of Yvonne’s repeated perpetration of the crime, this sentence for incitement could be prolonged to a maximum of six years and eight months of imprisonment, which the Court indeed did (para. 22.7).
back to topFurther analysis
E. van Sliedregt, ‘De Zaak Basebya’, Ars Aequi, December 2013 (in Dutch only).
back to topInstruments cited
back to topAdditional materials
‘Yvonne Ntacyobatabara Basebya’, TRIAL.
T. Bouwknegt, ‘Dutch Genocide Case Takes Shape’, Radio Netherlands Worldwide, 18 November 2011.
AFP, ‘Dutch citizen in the dock for Rwandan genocide’, Modern Ghana, 22 October 2012.
AP, ‘Rwandan-born Dutch Woman Jailed for Inciting Genocide’, The Guardian, 1 March 2013.
‘Dutch Yvonne Basebya jailed for Rwanda crimes’, BBC, 1 March 2013.
‘Grotendeels vrijspraak voor Rwandese Basebya in genocideproces’, De Volkskrant, 1 March 2013.
‘Yvonne Basebya acquitted for the most part in first genocide trial’, Prakken d’Oliveira, 5 March 2013.
