Eerste aanleg - meervoudig van Rechtbank 's-Gravenhage, 23 de Marzo de 2009

• Spreker: gepubliceerd
• Datum uitspraak: 23 de Marzo de 2009
• Uitgevende instantie: Rechtbank 's-Gravenhage

[Translation from Dutch]

DISTRICT COURT IN THE HAGUE

Criminal Law Section

Three-judge Division for Criminal Matters

Case numbers 09/750009-06 and 09/750007-07

Date of Judgement: 23 March 2009

Judgement

Based on the charges and further to the investigation during the court hearing, the District Court in The Hague has rendered the following judgement in the criminal case of the Prosecution against the Defendant:

Joseph [M.],

born in [place of birth] (Rwanda) on [date of birth] 1968,

address: [address],

presently detained at the Penitentiary Institution Haaglanden, Penitentiary Complex Scheveningen, Remand Prison Unit 2.

The investigation was held during the court hearings on 13, 14, 16, 17, 20, 21, 23, 24, 27, 28 October, 3, 10, 11, 17, 18, 19, 24 November, 1 and 4 December 2008, 2 February and 9 March 2009.

The Court has taken cognizance of the requests of the Public Prosecutors Mrs. H.C.M. van Bruggen and Mr. W.N. Ferdinandusse and of the submissions by the Counsel for the Defendant Mr. A.B.G.T. von Bóné, Lawyer in Rotterdam, and by the Defendant himself.

Chapter 1: The charges and the requests.

1. The Defendant stands trial for his involvement in serious criminal offences, allegedly committed in Rwanda in the period between April through July 1994. These facts are described in the Indictment with case numbers 09/750009-06 (Indictment I)(1) and 09/750007-07 (Indictment II)(2). Both Indictments were handled in a joint action.

2. In brief, the charges of Indictment I imply the following:

I: On or around 13 April 1994, the Defendant, together with others, stopped an ambulance in Birogo (prefecture Kibuye). This ambulance was driven by [witness 1] and carried two Tutsi-women. (Dativa and Brigitte) with their children and a girl named [witness 2]. After the ambulance had been stopped, the Defendant, together with others, forced it to drive to nearby Mugonero. During this drive, the ambulance was surrounded by attackers while arms were shown and the ambulance was hit by the attackers. The people surrounding the ambulance also yelled words such as 'Inkotanyi'. In Mugonero the passengers were forced to leave the ambulance. Threats were uttered such as “Before the cockroaches are going to be killed, the driver must be killed first”. Subsequently, the two Tutsi-women and their children were hit/hacked with machetes, clubs and/or other weapons. As a consequence, all passengers had to fear for their lives for a considerable time, the two Tutsi-women and their children died (after which a number of the children were thrown into Kivu Lake) and [witness 1] and [witness 2] suffered (serious) bodily harm.

II: On 16 April 1994, the Defendant, together with others and using all kinds of weaponry, attacked Tutsi civilians who stayed at the Seventh Day Adventists Complex in Mugonero. The Defendant and others shot at these civilians, hit and hacked them with machetes and other weapons and threw teargas into the buildings in which part of the Tutsis were hiding. Consequently, these persons were forced in a situation in which they had to fear for their lives and the lives of their family and friends. As a consequence of this attack, a large number of these people died and one or more of them suffered (serious) bodily harm.

III: On 27 April 1994, the Defendant, together with others, refused passage to [witness 3], her partner [witness 4] and their baby [B1] at a road block in Mugonero. Weapons were shown openly to the victims and they were able to hear remarks such as “cockroach(es)”, “Look well at that Tutsi woman, these are the people who murdered the president”, “Would you like to be treated as a Tutsi?”, “You can choose whether you are going to be killed in Kibingo, in Mugonero or in Gishyita”, “Look how bad these Tutsis are, they even laugh when we are going to kill them” and “Hutu-power”. As a consequence of this, [witness 3] found herself in a situation in which she had to fear for her life and that of her son for a prolonged time, while she was seriously humiliated in public by these actions. [Witness 4] was put in a situation in which he had to fear for his life and that of his partner for a prolonged time, while he was seriously humiliated in public by these actions.

3. In brief, the charges of Indictment II imply the following:

Ia: On 13 May 1994, the Defendant, together with others, at Muyira Hill, in the Bisesero area, grabbed a woman named Consolata Mukamurenzi, pushed her to the ground and said to her: “If you do not tell me where they are, we will kill you. If you tell me, we will leave you alone.” Subsequently, the Defendant told his co-perpetrators that they could rape her and that he would guarantee their safety. Upon this, his co-perpetrators raped her repeatedly, after which the Defendant stabbed a bayonet into her vagina and shot bullets in her back and head, as a consequence of which she died.

Ib: On 16 April 1994, the Defendant, together with others, threatened Marie Mukagatare and Gertrude Mukamana, who, while being on the run for the large scale violence towards Tutsi civilians, had taken refuge in a hospital room at the Adventists complex in Mugonero, by pointing a fire arm at them. Subsequently, he said to them: “For a long time we asked you to have sex with us. Then you refused. Now you cannot refuse anymore”, after which he raped both women and cut their throats as a consequence of which they died.

Ic: On or around 14 April 1994, at the Adventists Complex in Mugonero, the Defendant, together with others, grabbed, hit and raped a woman named Kayitesi.

II: In the period between 6 April through 1 July 1994, in Kibuye prefecture, the Defendant, together with others, took three grand children of [witness 5] and [witness 6] from the home of the grandparents, after which they were never heard of again.

4. In brief, all these facts have been charged principally as war crimes (article 8 Criminal Law in Wartime Act (3), and alternatively as torture (article 1 and 2 The Convention against Torture Implementation Act(4).

5. The Public Prosecution Service has demanded the Court to acquit the Defendant of the charges in the Indictment II under 1b, and shall deem legally and convincingly proven that the Defendant has committed the other charges in both Indictments, as principally charged. Furthermore, the Prosecution has demanded the Court to convict the Defendant to life imprisonment.

Chapter 2: Jurisdiction

1. Originally, all these facts were also charged to the Defendant as genocide. On 24 July 2007, the District Court of The Hague decided the Netherlands had no jurisdiction to bring the Defendant to trial for this charge.(5) On 17 December 2007, the Court of Appeal in The Hague came to the same decision.(6) The appeal in cassation, brought by the Prosecution, was dismissed by the Supreme Court.(7)

2. Although this subject did not lead to a discussion during the hearing of the case, the Court will, however, investigate whether the Netherlands has jurisdiction with respect to the facts as charged at present. As the Court considered in the afore mentioned decision dated 24 July 2007, the Defendant is not of Dutch nationality, nor are the victims mentioned in the charge, the Defendant is charged with committing the facts in Rwanda and furthermore, any (specific) Dutch interest is lacking.

3. However, other than in cases of genocide, Dutch law has, respectively in the Criminal Law in Wartime Act and the Torture Convention Implementation Act, provided for universal jurisdiction with respect to war crimes and torture committed in 1994.

4. Article 3 (old) of the Criminal Law in Wartime Act at the time of the facts as charged:

“Notwithstanding the provisions in the Dutch Criminal Code and the Code of Military Criminal Justice, Dutch criminal legislation is applicable to:

1. any person who is guilty of a crime as described in articles 8 and 9 (...), committed outside the kingdom of the Netherlands”.

   5. Recently, the Supreme Court has confirmed that on the basis of this provision the judge in the Netherlands has universal jurisdiction with respect to war crimes.

   “Assuming that since the taking effect of the Convention, acting contrary to art. 3 of the Convention constitutes the serious offence as described in art. 8 of the Criminal Law in Wartime Act and that – as results from the decision of the Supreme Court of 11 November 1997, LJN ZD0857, NJ 1998, 463 – in such cases the Dutch judge has jurisdiction pursuant to art. 3 (old) of the Criminal Law in Wartime Act.”(8)

   6. At the time of the charges, Article 5 of the Criminal Law in Wartime Act read as follows:

   “Dutch criminal law is applicable to any person who commits a serious offence outside the kingdom of the Netherlands as described in articles 1 and 2 of this law.”

   7. In its judgement in the Bouterse case, the Supreme Court considered the following with respect to the universal jurisdiction as defined in this article with respect to torture, with reference to the Torture Convention Implementation Act:

   “8.4 (...) that at the time of implementation of the jurisdiction rule of art. 5 of the Convention against torture and other cruel, inhuman or degrading punishment, the legislator did not want to go further than the terms to which the Netherlands are obliged pursuant to art. 5, first and second paragraph.

   8.5. As a consequence, the prosecution and trial of the Defendant of an offence as meant in art. 1 and 2 of The Convention against Torture Implementation Act, committed in a foreign country, are only possible if there are reference points mentioned in that Convention for the establishment of jurisdiction, for instance because the Defendant and/or the victim are of Dutch nationality, or because the Defendant, at the time of his arrest, stayed in the Netherlands.”(9)

   8. It is the Court’s opinion that this restriction of the execution of the universal jurisdiction should also be valid with respect to legislation for war crimes in cases as described in art. 3...