She is the first woman to be prosecuted for participation in the 1994 Rwandan genocide, but for defence lawyers the trial of Yvonne Basebya should never have started in a Dutch district court. The fact that witnesses cannot be easily cross-examined and have patchy memories of what happened 18 years ago make for a weak prosecution, they say.
By Josephine Uwineza, The Hague
The war crimes chamber at the Paleis van Justitie in The Hague last Friday extended the pre-trial period in the case of Yvonne B, as she is known here, for further investigation. Her trial is scheduled to start in September.
To date, the majority of the evidence in this case has been based on witness testimony, heard by the prosecutor, defence counsel and the investigating judge. Nevertheless the judges who will decide the verdict in this case will never hear or cross-examine witnesses themselves. They will not travel to Rwanda to visit the scene of the crime, but will assess events based on aerial photos and maps.
Defence lawyer Victor Koppe argues, “Some witnesses should be brought before the bench to testify in The Hague”. Prosecutors have rejected this demand saying it will unnecessarily prolong the proceedings - being heard by the investigating judge is enough, they say.
Koppe has already fired some of his trademark broadsides at the chamber, accusing the judges of having already made up their minds.
While the reliability of witnesses continues to be at the centre of arguments between prosecutors and defence lawyers, a decision on the issue is expected at end of March.
According to Professor Harmen van de Wilt from the University of Amsterdam, there are several factors aggravating the usefulness of witness testimony here - the events took place almost 18 years ago – bringing up the issue of ‘immediacy’.
In the Dutch system, in order to use witness statements as evidence, prosecutors and defence lawyers must follow a convoluted route through investigating judges – direct contact is not possible between the judges and witnesses as happens in Common law systems.
Until proven guilty
Since her arrest in June 2010, Basebya has maintained her innocence. She denies she encouraged Hutu militias in April 1994 to seek out and kill Tutsis with clubs, canes and firearms. But witnesses say she 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.
The trial in September could prove to illustrate the need for a change in procedure to bring the Dutch war crimes chamber more in line with accepted criminal justice standards. Or it may simply serve as the first step in a long process of building hard experience in judging unimaginable crimes - in far-flung places.