universal jurisdiction of Netherlands over genocide

http://www.rnw.nl/international-justice/article/dutch-genocide-case-takes-shape

Dutch genocide case takes shape

18 November 2011 - 11:52am | By International Justice Tribune

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Basebya’s trial will be another test case for Dutch universal jurisdiction. But this second Rwanda case in the Netherlands is likely to be the last one. .. since the European Court of Human Rights recently ruled Sweden was allowed to extradite a Rwandan genocide suspect to Kigali. This ruling is expected to ultimately lead to extraditions from all European countries to Rwanda.

Dutch judges are currently only able to hear foreign suspects over genocide committed after 2003. Mass slaughters prior to that time can only be handled if the genocide was committed by or against Dutch citizens.

However, last week the Dutch parliament approved an amendment which would make it possible to try foreign suspects for genocide committed since 1966.

The expansion of the law is the consequence of the increase in the number of Rwandan asylum seekers who present themselves as victims of the regime responsible for the 1994 genocide. Some of them, including Yvonne Basebya and Joseph Mpambara, were later recognised as possible perpetrators

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“Courage, Mama!” is the cry that reverberates throughout the courtroom in The Hague. The 64-year-old woman in the dock blows kisses to her weeping daughters. “The truth shall triumph,” vows Yvonne Basebya, suspect in the first genocide case against a Dutch citizen. The facts of the case occurred some 5,000 kilometres away and the legal procedure has been sluggish.

By Thijs Bouwknegt, The Hague

It was a Rwandan rendez-vous this week at the District Court in The Hague. Two elderly men embraced each other: one wearing a cowboy hat, the other showing off an untamed hairdo. Their wives are accused of committing serious crimes in Africa’s Great Lakes region: Victoire Ingabire Umuhoza in Rwanda for supporting FDLR rebels in Congo, and Yvonne Basebya in the Netherlands for genocide in Rwanda.

Three judges at the court’s War Crimes Chamber ruled that Basebya (also known by her Rwandan name Ntacyobatabara) will remain behind bars until her trial starts in April. She is accused of crimes “of the most serious kind in Dutch law.” It would be sending the wrong signal if she were to be allowed to spend Christmas with her family at her Dutch home in Reuver, the judges argued. Basebya follows her sixth pre-trial hearing through a French interpreter via her headphones.

Case “Fox”
The two prosecutors nod in agreement. They contend that granting her provisional release would disturb the ongoing investigation in Rwanda, and would “shock” the legal order. The Dutch International Crimes Unit has been working on Basebya’s case for the past four years. It has heard witnesses in Rwanda, Kenya, South Africa, Canada, Australia and the Dutch province of Limburg. The Basebya file, codenamed “Fox”, describes a bloody history: genocide, war crimes, incitement, murder and rape. The evidence: eyewitness accounts, phone tappings and files from Gacaca courts in Rwanda.

A Rwandan grassroots court sentenced Basebya to life imprisonment in absentia in 2007. She was already living in the Netherlands then, carrying a Dutch passport. She came to the attention of the Dutch criminal investigation department during a probe into the activities of her husband Augustin Basebya - a former investigator at the International Criminal Tribunal for Rwanda, who was sitting in the public gallery on Thursday. Suspicion quickly turned away from him to Yvonne.

Since her arrest in June 2010, Basebya has maintained her innocence. She denies that she spurred Hutu militias in April 1994 to seek out and kill Tutsis with clubs, canes and firearms. However, witnesses say that Basebya led gatherings of the extremist CDR (Coalition for the Defence of the Republic) Hutu party in the Kigali suburb of Gikondo, singing patriotic songs and dancing with murderous militias while issuing execution orders.

Paper tiger
Her defence paints a totally different picture: married to a respectable MP – Yvonne, risking her own life, saved Tutsis during the 100-day massacre. Basebya’s lawyer Victor Koppe calls the statements of the prosecution witnesses “unsound.”

He told the judges that because “nothing in Rwanda is what it seems …interpretation and the truth are fluid,” so these statements “actually prove her innocence rather than implicate her.”

He also warns that statements from Rwandans cannot be compared to those from Dutch people. “If the judges could go to Rwanda and hear the witnesses themselves, it could lead to a fairer judgment,” he said. In two weeks, the defence team will hear the testimony of former Hotel des Mille Collines manager Paul Rusesabagina.

The reliability of witnesses has been a bone of contention between prosecutors and lawyers. It is indeed difficult for the three Dutch judges to unveil the real truth. They are barred from going to Rwanda and cannot hear nor meet with witnesses in court. For them, the “Fox” case is a paper tiger.

Basebya’s trial will be another test case for Dutch universal jurisdiction. But this second Rwanda case in the Netherlands is likely to be the last one. In July The Hague Appeals Court found Rwandan asylum seeker Joseph Mpambara guilty of war crimes in Mugonero. But The Hague prefers to extradite genocide suspects to Rwanda. This is now possible since the European Court of Human Rights recently ruled Sweden was allowed to extradite a Rwandan genocide suspect to Kigali. This ruling is expected to ultimately lead to extraditions from all European countries to Rwanda.

Nevertheless, the Dutch citizen Yvonne Basebya will stand trial in her new country, cheered on by over 40 family members and friends in court. It is questionable whether genocide victims know what is going on in the Dutch court. To the chagrin of prosecutor Hester van Bruggen, no victims have so far turned up during the pre-trial hearings.

Universal Jurisdiction
Yvonne Basebya came to the Netherlands in 1998 to be reunited with her family. She is also known by her Rwandan name Ntacyobatabara. She obtained Dutch nationality in 2004. Dutch judges are currently only able to hear foreign suspects over genocide committed after 2003. Mass slaughters prior to that time can only be handled if the genocide was committed by or against Dutch citizens.

However, last week the Dutch parliament approved an amendment which would make it possible to try foreign suspects for genocide committed since 1966.

The expansion of the law is the consequence of the increase in the number of Rwandan asylum seekers who present themselves as victims of the regime responsible for the 1994 genocide. Some of them, including Yvonne Basebya and Joseph Mpambara, were later recognised as possible perpetrators

Domestic violence as torture

Dr. Mary Hansel

Posted: 16 Aug 2010 02:24 AM PDT

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Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

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Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14of the European Convention.

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For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

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The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

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The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, theOpuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

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Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

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As a result, state failures to prevent and redress domestic violence can now beunderstood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

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The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

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The Opuz holding is an important milestone in this regard.

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The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

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► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

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As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

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Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.